Filed: Apr. 19, 2011
Latest Update: Feb. 22, 2020
Summary: 10-156-ag Zheng v. Holder BIA Nelson, IJ A099 757 213 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 N
Summary: 10-156-ag Zheng v. Holder BIA Nelson, IJ A099 757 213 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 NO..
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10-156-ag
Zheng v. Holder
BIA
Nelson, IJ
A099 757 213
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 19th day of April, two thousand eleven.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 REENA RAGGI,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 MING YUN ZHENG,
14 Petitioner,
15
16 v. 10-156-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: G. Victoria Calle, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Civil Division; Cindy S.
28 Ferrier, Senior Litigation Counsel;
29 Brendan P. Hogan, Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Ming Yun Zheng, a native and citizen of the
6 People’s Republic of China, seeks review of a December 31,
7 2009, order of the BIA affirming the March 17, 2008,
8 decision of Immigration Judge (“IJ”) Barbara A. Nelson,
9 denying his application for withholding of removal and
10 relief under the Convention Against Torture (“CAT”). In re
11 Ming Yun Zheng, No. A099 757 213 (B.I.A. Dec. 31, 2009),
12 aff’g No. A099 757 213 (Immig. Ct. N.Y. City Mar. 17, 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). The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4)(B); see also Chuilu
20 Liu v. Holder,
575 F.3d 193, 196 (2d Cir. 2009).
21 Substantial evidence supports the agency’s
22 determination that Zheng failed to meet his burden of proof.
23 The IJ reasonably found that Zheng’s testimony alone, even
1 if credible, was insufficient to support his claim because
2 his testimony was not sufficiently persuasive or detailed
3 and was not reasonably corroborated. See 8 U.S.C. §
4 1158(b)(1)(B)(ii);
Chuilu, 575 F.3d at 196-99. We have held
5 that the IJ’s designation of missing corroboration need not
6 be done prior to the disposition of an alien’s claim. See
7
Chuilu, 575 F.3d at 198-99; see also 8 U.S.C.
8 § 1158(b)(1)(B)(ii)(REAL ID Act provision codifying the rule
9 that an IJ, weighing the evidence to determine if the alien
10 has met his burden, may rely on the absence of corroborating
11 evidence adduced by an otherwise credible applicant unless
12 such evidence cannot be reasonably obtained). Although the
13 Court in Chuilu limited its holding to pre-REAL ID Act
14 cases, we are not persuaded that the REAL ID Act provides
15 for an enhanced notice requirement given that: (1) the REAL
16 ID Act’s corroboration requirement closely tracks the
17 language in our case law regarding the procedures the IJ
18 must follow in relying on an alien’s failure to corroborate
19 otherwise credible testimony, see e.g., Diallo v. INS, 232
20 F.3d 279, 285-86 (2d Cir. 2000); (2) such a requirement
21 would contradict the immigration court’s requirement that
22 all supporting evidence must be filed in advance of the
23 hearing; and (3) such a requirement would essentially
1 necessitate two merits hearings, causing unwarranted delay.
2 Thus, the IJ did not err in relying on Zheng’s failure to
3 corroborate his claim with an affidavit from his brother and
4 rejecting his explanation that he was unaware that an
5 affidavit from his brother would be necessary. See Chuilu,
6 575 F.3d at 198 (stating that the alien bears the ultimate
7 burden of introducing corroborative evidence without
8 prompting from the IJ).
9 The IJ also reasonably refused to afford evidentiary
10 weight to Zheng’s baptism certificate because of the
11 discrepancies regarding the year in which he was baptized
12 and Zheng’s failure to provide corroborating testimony from
13 his pastor. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
14 F.3d 315, 342 (2d Cir. 2006) (providing that the weight
15 afforded to the applicant’s evidence in immigration
16 proceedings lies largely within the discretion of the IJ).
17 Accordingly, we find that the IJ’s determination that Zheng
18 failed to meet his burden of proof is reasonable.
19 See 8 U.S.C. § 1158(b)(1)(B)(ii); 8 C.F.R. § 1208.13; see
20 also
Chuilu, 575 F.3d at 196-99. Because Zheng’s claims for
21 withholding of removal and CAT relief were based on the same
22 factual predicate, the IJ also reasonably denied his claim
23 for CAT relief on this same ground. See Paul v. Gonzales,
24
444 F.3d 148, 157 (2d Cir. 2006).
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
