Zhao v. Garland

21-6014
Zhao v. Garland
BIA
Kolbe, IJ
A209 163 282
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 8th day of February, two thousand twenty-
5 three.
6
7 PRESENT:
8 MICHAEL H. PARK,
9 BETH ROBINSON,
10 SARAH A. L. MERRIAM,
11 Circuit Judges.
12 _____________________________________
13
14 PING ZHAO,
15 Petitioner,
16
17 v. 21-6014
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent. *
22 _____________________________________
23
24 FOR PETITIONER: Richard Tarzia, Esq., Belle Mead,
25 NJ.
The Clerk of Court is respectfully directed to amend
*
the caption as set forth above.
1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant
2 Attorney General; Mary Jane
3 Candaux, Assistant Director; Remi
4 Da Rocha-Afodu, Trial Attorney,
5 Office of Immigration Litigation,
6 United States Department of
7 Justice, Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Ping Zhao, a native and citizen of the
13 People’s Republic of China, seeks review of a December 7,
14 2020 decision of the BIA denying his motion to terminate and
15 affirming a July 26, 2018 decision of an Immigration Judge
16 (“IJ”) that denied his application for asylum and withholding
17 of removal. In re Zhao Ping, No. A 209 163 282 (B.I.A. Dec.
18 7, 2020), aff’g No. A 209 163 282 (Immigr. Ct. N.Y.C. July
19 26, 2018). We assume the parties’ familiarity with the
20 underlying facts and procedural history.
21 I. Motion to Terminate
22 Zhao’s argument that the immigration court lacked
23 jurisdiction because his Notice to Appear (“NTA”) omitted the
24 time and date of his hearing is foreclosed by our case law.
25 We have held that the Supreme Court’s decisions in Pereira v.
2
1 Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland,
2 141 S. Ct. 1474 (2021), are limited to the stop-time rule
3 relating to cancellation of removal and are “not properly
4 read to void jurisdiction in cases in which an NTA omits a
5 hearing time or place.” Banegas Gomez v. Barr, 922 F.3d 101,
6 110 (2d Cir. 2019); see also Chery v. Garland, 16 F.4th 980,
7 987 (2d Cir. 2021) (“Banegas Gomez remains good law even after
8 the Supreme Court’s opinion in Niz-Chavez.”). “[A]n NTA that
9 omits information regarding the time and date of the initial
10 removal hearing is . . . adequate to vest jurisdiction in the
11 Immigration Court, at least so long as a notice of hearing
12 specifying this information is later sent to the
13 alien.” Banegas Gomez, 922 F.3d at 112. Here, Zhao later
14 received a hearing notice that provided the missing
15 information, and he appeared at his hearing. Accordingly,
16 the agency did not err in denying his motion to terminate.
17 II. Asylum and Withholding of Removal
18 We have reviewed both the BIA’s and the IJ’s decisions
19 denying asylum and withholding of removal. See Yun-Zui Guan
20 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
21 standards of review are well established. See 8 U.S.C.
3
1 § 1252(b)(4)(B) (“[T]he administrative findings of fact are
2 conclusive unless any reasonable adjudicator would be
3 compelled to conclude to the contrary.”); Wei Sun v.
4 Sessions, 883 F.3d 23, 27 (2d Cir. 2018) (reviewing factual
5 findings for substantial evidence and questions of law de
6 novo).
7 “The testimony of the applicant may be sufficient to
8 sustain the applicant’s burden without corroboration, but
9 only if the applicant satisfies the trier of fact that the
10 applicant’s testimony is credible, is persuasive, and refers
11 to specific facts sufficient to demonstrate that the
12 applicant is a refugee. . . . Where the trier of fact
13 determines that the applicant should provide evidence that
14 corroborates otherwise credible testimony, such evidence must
15 be provided unless the applicant does not have the evidence
16 and cannot reasonably obtain the evidence.” 8 U.S.C.
17 § 1158(b)(1)(B)(ii); see also Wei Sun, 883 F.3d at 30–31.
18 Before denying a claim based on an applicant’s failure to
19 provide corroborating evidence, an IJ should “(1) point to
20 specific pieces of missing evidence and show that it was
21 reasonably available, (2) give the applicant an opportunity
4
1 to explain the omission, and (3) assess any explanation
2 given.” Wei Sun, 883 F.3d at 31.
3 We find no error in the agency’s conclusion that Zhao
4 failed to meet his burden of proof. The agency reasonably
5 concluded that Zhao’s testimony on its own was insufficient
6 given the lack of detail he provided about events in China
7 and his practice of Christianity in the United States. See
8 8 U.S.C. § 1158(b)(1)(B)(ii); Wei Sun, 883 F.3d at 28; Yan
9 Juan Chen v. Holder, 658 F.3d 246, 252 (2d Cir. 2011)
10 (agreeing that testimony lacked detail where the applicant
11 could not provide details about treatment by alleged
12 persecutors). Zhao did not provide any corroborating
13 evidence, from China or the United States, to confirm his
14 alleged persecution or his practice of Christianity in either
15 country.
16 The IJ applied the correct framework by identifying the
17 missing evidence—letters from Zhao’s wife, mother, anyone in
18 China, or his church in the United States attesting to his
19 Christian practice or the alleged persecution—and asking Zhao
20 why he had not provided that evidence. Wei Sun, 883 F.3d at21 31. Zhao’s explanations that his wife and mother are not
5
1 well-educated, that church members in China have gone
2 elsewhere to work, and that people at his church in the United
3 States “use[d] the work as excuse to refuse,” Certified Admin.
4 R. at 138, do not compel a conclusion that written statements
5 were unavailable particularly given the years that Zhao had
6 to prepare for his hearing. See 8 U.S.C. § 1252(b)(4) (“No
7 court shall reverse a determination made by a trier of fact
8 with respect to the availability of corroborating
9 evidence . . . unless . . . a reasonable trier of fact is
10 compelled to conclude that such corroborating evidence is
11 unavailable.”); Wei Sun, 883 F.3d at 31 (holding that an
12 applicant “bears the ultimate burden of introducing such
13 evidence without prompting from the IJ”). The agency’s
14 conclusion that Zhao failed to meet his burden of proof is
15 dispositive of both asylum and withholding of removal. See
16 Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 2010).
17 For the foregoing reasons, the petition for review is
18 DENIED. All pending motions and applications are DENIED and
19 stays VACATED.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe,
22 Clerk of Court
6