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, 

, 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, 

, 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,

, 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, 

, 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

                              3
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 

.

    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 

.   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.    

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

                             4
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., 

, 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, 

, 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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