Filed: Dec. 13, 2010
Latest Update: Feb. 21, 2020
Summary: 09-4793-ag Cai v. Holder 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 P
Summary: 09-4793-ag Cai v. Holder 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 PA..
More
09-4793-ag
Cai v. Holder
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 13 th day of December, two thousand ten.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 ROBERT A. KATZMANN,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 HUI IUAN CAI,
14 Petitioner,
15
16 v. 09-4793-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gang Zhou, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Douglas E. Ginsburg,
27 Assistant Director; Seth A.
28 Director, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Hui Iuan Cai, a native and citizen of the People’s
6 Republic of China, seeks review of an October 28, 2009,
7 decision of the BIA, affirming the January 18, 2008,
8 decision of Immigration Judge (“IJ”) Steven R. Abrams, which
9 denied her application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Hui Iuan Cai, No. A077 911 592 (B.I.A. Oct. 28, 2009),
12 aff’g No. A077 911 592 (Immig. Ct. N.Y. City Jan. 18, 2008).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we consider both
16 the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008)(internal quotation marks omitted). The applicable
19 standards of review are well-established. See Salimatou Bah
20 v. Mukasey,
529 F.3d 99, 110 (2d Cir. 2008); Manzur v. U.S.
21 Dep’t of Homeland Sec.,
494 F.3d 281, 289 (2d Cir. 2007).
22 In finding that Cai failed to sustain her burden of
23 proof, the IJ reasonably relied on her failure to
2
1 corroborate her claims with specific documents. See Diallo
2 v. INS, 232 F.3d 279, 285-86 (2d Cir. 2000). We defer to
3 the BIA’s rule that “[w]hile consistent, detailed, and
4 credible testimony may be sufficient to carry the alien’s
5 burden, evidence corroborating his story, or an explanation
6 for its absence, may be required where it would reasonably
7 be expected.”
Id. At 285. We have held that before denying
8 a claim solely due to an applicant’s failure to provide
9 corroborating evidence, the agency must “explain
10 specifically, either in its decision or otherwise in the
11 record: (1) why it is reasonable under the BIA’s standards
12 to expect such corroboration; and (2) why [the applicant’s]
13 proffered explanations for the lack of such corroboration
14 are insufficient.”
Id. at 290.
15 In this case, the IJ did not err in relying on Cai’s
16 failure to submit copies of the petition she wrote
17 complaining of her unjust demotion for rejecting the loan
18 application of the son of a bank vice president and
19 Communist party member because that petition was reasonably
20 available when she had submitted the petition to the bank’s
21 internal affairs committee, the Changle City internal
22 affairs committee, and two local newspapers.
Id. The IJ
3
1 also did not err in relying on Cai’s failure to submit any
2 documentation, such as a warrant or summons, to support her
3 claim that charges for slandering the Chinese government
4 were pending against her in China. Id. The IJ reasonably
5 declined to credit Cai’s explanation, that such
6 documentation was not in her possession, stating that it was
7 “strange” that she was not given any documentation to retain
8 in connection with her alleged criminal proceedings and
9 court appearance, and further noting that she had seven
10 years to obtain some evidence corroborating the criminal
11 proceedings against her. See Majidi v. Gonzales,
430 F.3d
12 77, 80-81 (2d Cir. 2005); see also
Diallo, 232 F.3d at 285-
13 86.
14 Accordingly, the IJ adequately explained in the record
15 why he reasonably expected corroborative documentation and
16 why he found Cai’s explanations for the lack of
17 corroboration insufficient, and did not err in denying Cai’s
18 application for asylum for lack of corroboration. See
19
Diallo, 232 F.3d at 290. Because Cai’s claim for
20 withholding of removal was based on the same facts as her
21 asylum claim, the agency’s denial of both forms of relief
22 was not in error. See Paul v. Gonzales,
444 F.3d 148, 156
4
1 (2d Cir. 2006). Cai does not challenge the agency’s denial
2 of her application for CAT relief.
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
5
