Huang v. Lynch , 637 F. App'x 32 ( 2016 )

14-4699
Huang v. Lynch
BIA
Nelson, IJ
A205 048 735
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 1st day of March, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 SUSAN L. CARNEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 CHUNYUN HUANG,
14 Petitioner,
15
16 v. 14-4699
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New York.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Emily
27 Anne Radford, Assistant Director;
28 Nehal H. Kamani, Trial Attorney,
29 Office of Immigration Litigation,
1 United States Department of Justice,
2 Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review is
7 DENIED.
8 Petitioner Chunyun Huang, a native and citizen of the
9 People’s Republic of China, seeks review of a December 2, 2014,
10 decision of the BIA, affirming a March 11, 2013, decision of
11 an Immigration Judge (“IJ”) denying Huang’s application for
12 asylum, withholding of removal, and relief under the Convention
13 Against Torture (“CAT”). In re Chunyun Huang, No. A205 048 735
14 (B.I.A. Dec. 2, 2014), aff’g No. A205 048 735 (Immig. Ct. N.Y.
15 City Mar. 11, 2013). We assume the parties’ familiarity with
16 the underlying facts and procedural history in this case.
17 Under the circumstances of this case, we have reviewed the
18 IJ’s decision as modified by the BIA, i.e., minus the basis for
19 denying relief that the BIA did not explicitly consider (the
20 IJ’s adverse credibility finding). See Chuilu Liu v. Holder,
21 575 F.3d 193, 194, 196 (2d Cir. 2009). The applicable standards
22 of review are well established. 8 U.S.C. § 1252(b)(4)(B);
23 Chuilu Liu, 575 F.3d at 196. The agency reasonably concluded
2
1 that Huang failed to satisfy her burden of proof by providing
2 reasonably available evidence to corroborate her claim that she
3 was forced to abort a pregnancy under China’s family planning
4 policy.
5 An applicant may establish eligibility for asylum by
6 demonstrating that she “has been forced to abort a pregnancy
7 . . . [under] a coercive population control program.” 8 U.S.C.
8 § 1101(a)(42). “While consistent, detailed, and credible
9 testimony may be sufficient to carry the alien’s burden,
10 evidence corroborating h[er] story, or an explanation for its
11 absence, may be required where it would reasonably be expected.”
12 Diallo v. INS, 232 F.3d 279, 285 (2000). Before denying a claim
13 solely based on an applicant’s failure to provide corroborating
14 evidence, the IJ must, either in her decision or otherwise in
15 the record (1) identify the specific evidence missing, and
16 explain why it was reasonably available; (2) provide an
17 opportunity to explain the omission; and (3) assess any
18 explanation given. Chuilu Liu, 575 F.3d at 198.
19 In this case, it was reasonable for the agency to require
20 corroboration because Huang’s testimony was evasive and
21 inconsistent at times and thus not sufficiently persuasive.
22 See 8 U.S.C. § 1158(b)(1)(B)(ii); see also Chuilu, 575 F.3d at
3
1 196-97. Moreover, the agency properly identified the missing
2 evidence, noting that neither Huang’s husband nor her
3 sister-in-law had submitted letters to corroborate her claim
4 despite their firsthand knowledge of the relevant underlying
5 events. Huang was provided an opportunity to explain why this
6 evidence was missing, but she repeatedly avoided giving a direct
7 answer before finally admitting that she had not requested such
8 letters. See Chuilu Liu, 575 F.3d at 198 (“[T]he alien bears
9 the ultimate burden of introducing such evidence without
10 prompting from the IJ.”). Furthermore, although Huang
11 submitted a medical certificate, it corroborated that she had
12 used an intrauterine device, but it did not corroborate her
13 alleged abortion.
14 Accordingly, the agency did not err in finding that Huang
15 failed to satisfy her burden of demonstrating past persecution.
16 Id. at 196-98. That finding is dispositive of asylum,
17 withholding of removal, and CAT relief because all three claims
18 were based solely on her assertion of a forced abortion. See
19 8 C.F.R. §§ 1208.13(b)(1), 1208.16(b)(1), (c)(3).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of removal
22 that the Court previously granted in this petition is VACATED,
4
1 and any pending motion for a stay of removal in this petition
2 is DISMISSED as moot. Any pending request for oral argument
3 in this petition is DENIED in accordance with Federal Rule of
4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT:
7 Catherine O=Hagan Wolfe, Clerk
5