Zong Xiung He v. Holder

10-543-ag
He v. Holder
BIA
Abrams, IJ
A098 235 517
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 12th day of April, two thousand twelve.
PRESENT:
DENNIS JACOBS,
Chief Judge,
ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
______________________________________
ZONG XIUNG HE,
Petitioner,
10-543-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Gary J. Yerman, New York, NY.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Richard M. Evans, Assistant
Director; Andrew Oliveira, Trial
Attorney, Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner, Zong Xiung He, a native and citizen of
China, seeks review of a January 15, 2010, decision of the
BIA affirming the April 9, 2008, decision of Immigration
Judge (“IJ”) Steven R. Abrams denying his application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re He, No. A098 235
517 (B.I.A. Jan. 15, 2010), aff’g No. A098 235 517 (Immig.
Ct. N.Y. City Apr. 9, 2008). We assume the parties’
familiarity with the underlying facts and procedural history
of the case.
Under the circumstances of this case, we review both
the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008). The applicable standards of review are well-
established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Because
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He does not challenge the agency’s pretermission of his
asylum claim or otherwise argue that he is eligible for
asylum, we consider only the agency’s denial of withholding
of removal and CAT relief. See Yueqing Zhang v. Gonzales,
426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
He contends that the agency erred in finding that his
testimony was insufficiently detailed and that he failed to
adequately corroborate his claim. Although an applicant’s
credible testimony alone may be enough to carry his burden
of proof, 8 C.F.R. § 208.13(a), an IJ may nonetheless
require that his testimony be corroborated if one would
reasonably expect corroborating evidence to be available.
See 8 U.S.C. § 1158(b)(1)(B)(ii) (“Where the trier of fact
determines that the applicant should provide evidence that
corroborates otherwise credible testimony, such evidence
must be provided unless the applicant does not have the
evidence and cannot reasonably obtain the evidence”); Chuilu
Liu v. Holder, 575 F.3d 193, 196-98 (2d Cir. 2009). Here,
the agency determined that some corroboration was needed,
either medical evidence or documentation of He’s arrest and
detention. But He failed to provide medical documentation
or any documentation of his arrest or detention. He did not
provide any explanation for his failure to present such
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evidence, and the record does not compel the conclusion that
such evidence was unavailable, especially since He testified
that his injuries were very serious–that he was severely
beaten to the point of losing consciousness. See 8 U.S.C.
§§ 1158(b)(1)(B)(ii); 8 U.S.C. § 1252(b)(4); Chuilu Liu, 575
F.3d at 196-99.
Although He argues that the IJ failed to give him
proper notice that additional corroboration was necessary,
an IJ need not specify the points of testimony that require
corroboration prior to disposition of the applicant’s claim.
See Chuilu Liu, 575 F.3d at 198-99. It is enough that the
IJ identify the necessary pieces of corroborating evidence
in its decision, which then affords a petitioner the
opportunity to present the additional evidence either on a
motion to reopen or before the BIA on appeal. Id. at 199.
The IJ in this case did specify the additional corroboration
required in his oral decision; thus, Petitioner’s failure to
come forward with corroborating evidence coupled with his
failure to provide any explanation for the absence of
corroborating evidence is fatal to his claim.
Finally, nothing in the record would compel a
reasonable fact-finder to conclude that Petitioner practices
Falun Gong in the United States based on his and his
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cousin’s testimony about his practice, particularly given
that He testified that he practices alone and has never met
any other Falun Gong practitioners, his cousin does not
practice Falun Gong and did not provide any details about
how He practices, and nobody who practices Falun Gong
testified that Petitioner practices Falun Gong. See 8
U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep't of
Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
Because the agency reasonably found that He did not
satisfy his burden of proof either as to past harm or with
respect to any bases for future harm, the agency did not err
in denying withholding of removal and CAT relief, as those
claims were based on the same factual predicate. See Paul v.
Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal is DISMISSED as moot. Any pending
request for oral argument in this petition is DENIED in
accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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