Filed: Aug. 10, 2010
Latest Update: Feb. 21, 2020
Summary: 08-3773-ag Wang v. Holder BIA Nelson, IJ A098 977 458 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: 08-3773-ag Wang v. Holder BIA Nelson, IJ A098 977 458 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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08-3773-ag
Wang v. Holder
BIA
Nelson, IJ
A098 977 458
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 10 th day of August, two thousand ten.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 GUI QIN WANG,
14 Petitioner,
15
16 v. 08-3773-ag (L);
17 09-1798-ag (Con)
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONER: Gang Zhou, New York, New York.
26
27 FOR RESPONDENT: Gregory G. Katsas, Assistant
28 Attorney General, Civil Division,
29 John S. Hogan, Senior Litigation
30 Counsel, Achiezer Guggenheim,
31 Attorney, David H. Wetmore,
32 Attorney, Office of Immigration
33 Litigation, Civil Division, United
34 States Department of Justice,
35 Washington, D.C.
1 UPON DUE CONSIDERATION of these petitions for review of
2 two Board of Immigration Appeals (“BIA”) decisions, it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petitions for
4 review are DENIED.
5 Petitioner Gui Qin Wang, a native and citizen of the
6 People’s Republic of China, seeks review of: (1) a July 3,
7 2008 order of the BIA affirming the July 6, 2006 decision of
8 Immigration Judge (“IJ”) Barbara A. Nelson denying Wang’s
9 applications for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”); and (2) an
11 April 21, 2009 order of the BIA denying Wang’s motion to
12 reopen. In re Gui Qin Wang, No. A098 977 458 (B.I.A. July
13 3, 2008), aff’g No. A098 977 458 (Immig. Ct. N.Y. City July
14 6, 2006), In re Gui Qin Wang, No. A098 977 458 (B.I.A. Apr.
15 21, 2009). We assume the parties’ familiarity with the
16 underlying facts and procedural history in this case.
17 I. 08-3773-ag (L)
18 Under the circumstances of this case, this Court
19 reviews the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of
20 Justice, 489 F.3d 517, 523 (2d Cir. 2007). The applicable
21 standards of review are well-established. 8 U.S.C.
22 § 1252(b)(4)(B); see Yanqin Weng v. Holder,
562 F.3d 510,
23 513 (2d Cir. 2009).
2
1 An applicant’s credible testimony alone may suffice to
2 carry her burden of proof in establishing eligibility for
3 asylum. 8 U.S.C. § 1158(b)(1)(B)(ii). In this case,
4 however, the IJ denied that relief after finding that Wang
5 failed to provide reasonably available corroborative
6 evidence in the form of letters from her husband and son
7 concerning material elements of her claim. Wang argues that
8 the IJ erred in relying on the absence of this evidence
9 because neither her husband nor son had personal knowledge
10 of her forced abortions and she was never given an
11 opportunity to explain why she did not produce supporting
12 statements from them. Under the REAL ID Act amendments,
13 which apply to Wang’s application for relief, Matter of
14 S-B-, 24 I. & N. Dec. 42, 45 (B.I.A. 2006), “[w]here the
15 trier of fact determines that the applicant should provide
16 evidence that corroborates otherwise credible testimony,
17 such evidence must be provided unless the applicant does not
18 have the evidence and cannot reasonably obtain the
19 evidence.” See 8 U.S.C. § 1158(b)(1)(B)(ii). Under those
20 provisions, “an IJ, weighing the evidence to determine if
21 the alien has met his burden, may rely on the absence of
22 corroborating evidence adduced by an otherwise credible
23 applicant unless such evidence cannot be reasonably
3
1 obtained.” Chuilu Liu v. Holder, 575 F.3d 193, 197 (2d Cir.
2 2009).
3 Here, the record does not compel a conclusion that the
4 evidence the IJ sought was not reasonably available. The
5 record belies Wang’s assertion that she was not given the
6 opportunity to explain why she did not provide such
7 corroboration. Indeed, when asked why she did not, she
8 responded that she did not think to do so. That response
9 would not compel a reasonable factfinder to conclude that
10 the evidence was not reasonably available. See Majidi v.
11 Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005). We are also
12 unpersuaded by Wang’s argument that the evidence the IJ
13 sought was immaterial where: (1) Wang testified that her
14 husband knew about her abortions and attempted to obtain
15 compensation for her hospital bills; and (2) Wang testified
16 that her son found her after she fainted following a
17 confrontation with village cadres.
18 The IJ also reasonably found that several inadequacies
19 in Wang’s supporting documents – which included a letter
20 from a co-worker and a letter from a doctor – adversely
21 impacted her ability to meet her burden of proof. 1 See Xiao
1
Wang’s argument that the BIA violated her due
process rights by relying on unidentified inconsistencies
4
1 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
2 2006) (holding that the weight afforded to the applicant’s
3 evidence in immigration proceedings lies largely within the
4 discretion of the IJ).
5 Because substantial evidence supports the IJ’s finding
6 that Wang failed to sufficiently corroborate her claim, the
7 IJ properly denied her application for asylum. See 8 U.S.C.
8 § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 197-98.
9 Because Wang was unable to show the objective likelihood of
10 persecution needed to make out an asylum claim, she was
11 necessarily unable to meet the higher standard required to
12 succeed on a claim for withholding of removal. See Paul v.
13 Gonzales,
444 F.3d 148, 156 (2d Cir. 2006); see also
14 8 U.S.C. § 1231(b)(3)(c). Wang has failed to sufficiently
15 challenge the agency’s denial of CAT relief and does not
16 raise before this Court any claim based on her illegal
17 departure from China. Thus, we deem any such arguments
18 waived. See Yueqing Zhang v. Gonzales,
426 F.3d 540, 541
19 n.1, 545 n.7 (2d Cir. 2005).
and reversing the IJ’s credibility determination lacks
merit. The BIA did not reverse the IJ’s finding that
Wang’s testimony was credible, but rather affirmed the
IJ’s finding that the inconsistencies impacted upon
Wang’s ability to meet her burden.
5
1 II. 09-1798-ag (Con)
2 We review the BIA’s denial of a motion to reopen for
3 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
4 Cir. 2005) (per curiam). “A motion to reopen proceedings
5 shall not be granted unless it appears to the Board that
6 evidence sought to be offered is material and was not
7 available and could not have been discovered or presented at
8 the former hearing.” 8 C.F.R. § 1003.2(c)(1) (2005).
9 Here, the BIA did not err in finding that the evidence
10 Wang provided in support of her ineffective assistance of
11 counsel claim was available before she filed her appeal.
12 See Matter of Guevara, 20 I&N Dec. 238 (BIA 1991); see
13 Norani v. Gonzales,
451 F.3d 292, 294 & n.3 (2d Cir. 2006).
14 Wang asserts that she was not aware of her previous
15 counsel’s ineffective assistance until after she filed her
16 initial appeal to the BIA. However, she stated in her
17 motion to reopen before the BIA that she discovered that her
18 previous attorney failed to submit her friend’s affidavit
19 when she received her file from him before filing a timely
20 appeal. Accordingly, both she and her new attorney were
21 aware of the alleged ineffective assistance before filing
22 her appeal to the BIA, and the BIA reasonably determined
23 that her evidence was not previously unavailable. 8 C.F.R.
24 § 1003.2(c)(1);
Norani, 451 F.3d at 294.
6
1 Thus, because the BIA did not err in finding that Wang
2 failed to provide evidence that was previously unavailable,
3 it did not abuse its discretion in denying her motion to
4 reopen. See INS v. Abudu, 485 U.S. 94, 104-05 (1988);
5
Norani, 451 F.3d at 294; 8 C.F.R. § 1003.2(c)(1).
6 For the foregoing reasons, the petitions for review are
7 DENIED. As we have completed our review, the pending motion
8 for a stay of removal is DISMISSED as moot.
9
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
13
14
7
