Shunji Fang v. Holder

12-1880
Fang v. Holder
BIA
Vomacka, IJ
A089 915 673
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 11th day of February, two thousand fourteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 SHUNJI FANG,
14 Petitioner,
15
16 v. 12-1880
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: John X. Wang, Law Offices of Wang &
24 Associates, New York, New York. M.
25 Omar Chaudry, Huntington, New York.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; Emily Anne
29 Radford, Assistant Director; C.
30 Frederick Sheffield, Trial Attorney,
31 Office of Immigration Litigation,
32 United States Department of Justice,
33 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Petitioner Shunji Fang, a native and citizen of China,
6 seeks review of an Apr. 9, 2013, decision of the BIA
7 affirming a January 22, 2010, decision of Immigration Judge
8 (“IJ”) Alan Vomacka, denying Fang’s application for asylum,
9 withholding of removal and relief under the Convention
10 Against Torture (“CAT”). In re Shunji Fang, No. A089 915
11 673 (B.I.A. Apr. 9, 2013), aff’g No. A089 915 673 (Immig.
12 Ct. N.Y. City Jan. 22, 2010). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as modified by the BIA, i.e., minus the
17 arguments for denying relief that were not considered by the
18 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
19 520, 522 (2d Cir. 2005). The applicable standards of review
20 are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
21 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
22 The agency may require corroboration despite otherwise
23 credible testimony. See Chuilu Liu v. Holder, 575 F.3d 193,
2
1 198 (2d Cir. 2009) (holding that “a failure to corroborate
2 can suffice, without more, to support a finding that an
3 alien has not met his burden of proof”). Before denying a
4 claim solely because of an applicant’s failure to provide
5 corroborating evidence, the IJ must: (1) identify the
6 specific pieces of missing, relevant documentation and
7 explain why it was reasonably available; (2) provide the
8 petitioner an opportunity to explain the omission; and (3)
9 assess any explanation given. See id.; see also 8 U.S.C.
10 § 1158(b)(1)(B)(ii).
11 Here, given that Fang testified that she was detained
12 for two weeks after she and 14 others were arrested at a
13 religious gathering at her home, the IJ reasonably required
14 her to provide statements from her family or fellow
15 practitioners, as these individuals would have first-hand
16 knowledge of these events.
17 Contrary to Fang’s argument, the IJ did assess her
18 explanation for the lack of corroborating evidence, and
19 substantial evidence supports the agency’s determination
20 that her explanations were insufficient. The IJ noted that,
21 although Fang testified that her parents were unaware of her
22 arrest and detention, she had testified that her parents
3
1 cared for her daughter while she was detained, and
2 reasonably concluded that her parents could have submitted a
3 statement that they watched her daughter during that time
4 period, even if not aware that Fang had been detained. As
5 to Fang's husband’s testimony that his parents did not
6 submit a statement because they were illiterate, the IJ
7 reasonably found that his parents could have obtained
8 assistance in preparing a statement for the court. See
9 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (under
10 substantial evidence standard, agency need not credit an
11 applicant’s explanations unless those explanations would
12 compel a reasonable fact-finder to do so).
13 The IJ further found that Fang had not provided any
14 background evidence relating to religious persecution in
15 China, and she has failed to provide any explanation for
16 this omission. See Chuilu Liu, 575 F.3d at 199 (finding that
17 an explanation for a failure to provide corroborating
18 evidence can be made “either in a motion to reopen or on
19 appeal to the BIA”).
20 Fang’s assertion that her husband’s testimony
21 adequately corroborated her claim is unpersuasive, as he was
22 not in China when Fang was detained and their testimony was
4
1 inconsistent in several respects, including the length of
2 Fang’s detention. Accordingly, substantial evidence
3 supports the agency’s determination that Fang could
4 reasonably provide corroborating evidence and, as she had
5 not, she did not establish past persecution or a
6 well-founded fear of future persecution. See id. at 196-99.
7 We will not consider Fang’s challenge to the IJ’s
8 adverse credibility determination because the BIA did not
9 affirm on this basis. Xue Hong Yang, 426 F.3d at 522.
10 Fang’s remaining arguments were not raised in her counseled
11 brief to the BIA, and we decline to review them. See Lin
12 Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1 (2d
13 Cir. 2007).
14 Because Fang was unable to show the objective
15 likelihood of persecution needed to make out an asylum
16 claim, she was necessarily unable to meet the higher
17 standard required to succeed on a claim for withholding of
18 removal or CAT relief. See Paul v. Gonzales, 444 F.3d 148,
19 156 (2d Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
23 is VACATED, and any pending motion for a stay of removal in
5
1 this petition is DISMISSED as moot. Any pending request for
2 oral argument in this petition is DENIED in accordance with
3 Federal Rule of Appellate Procedure 34(a)(2), and Second
4 Circuit Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
6