Filed: Aug. 15, 2012
Latest Update: Mar. 26, 2017
Summary: 11-2771 Zheng v. Holder BIA Nelson, IJ A088 533 474 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 NOT
Summary: 11-2771 Zheng v. Holder BIA Nelson, IJ A088 533 474 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 NOTA..
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11-2771
Zheng v. Holder
BIA
Nelson, IJ
A088 533 474
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 15th day of August, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12 _____________________________________
13
14 YUNLING ZHENG,
15 Petitioner,
16
17 v. 11-2771
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Dehai Zhang, Flushing, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Anh-Thu P. Mai-Windle,
28 Senior Litigation Counsel; Ann M.
05212012-30
1 Welhaf, Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5 UPON DUE CONSIDERATION of this petition for review of a
6 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
8 review is DENIED.
9 Petitioner Yunling Zheng seeks review of a June 17,
10 2011, decision of the BIA that affirmed the August 13, 2009,
11 decision of Immigration Judge (“IJ”) Barbara A. Nelson that:
12 (1) denied her motion to change venue; (2) pretermitted her
13 asylum application as untimely; and (3) denied on the merits
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Yunling Zheng,
16 No. A088 533 474 (B.I.A. June 17, 2011), aff’g No. A088 533
17 474 (Immig. Ct. N.Y. City Aug. 13, 2009). We assume the
18 parties’ familiarity with the underlying facts and
19 procedural history of this case.
20 Under the circumstances of this case, we have reviewed
21 both the IJ’s and the BIA’s opinions. See Zaman v. Mukasey,
22 514 F.3d 233, 237 (2d Cir. 2008). The applicable standards
23 of review are well-established. See Monter v. Gonzales, 430
24 F.3d 546, 558-59 (2d Cir. 2005); see also Aliyev v. Mukasey,
25
549 F.3d 111, 115 (2d Cir. 2008).
05212012-30 2
1 An IJ may grant a change of venue “for good cause[,
2 which] . . . is determined by balancing such factors as
3 administrative convenience, the alien’s residence, the
4 location of witnesses, evidence and counsel, expeditious
5 treatment of the case, and the cost of transporting
6 witnesses and evidence to a new location.” Monter, 430 F.3d
7 at 559 (quoting Lovell v. INS,
52 F.3d 458, 460 (2d Cir.
8 1995) and citing 8 C.F.R. § 1003.20(b)). The agency did not
9 abuse its discretion in finding that Zheng failed to
10 demonstrate good cause for her motion to change venue as it
11 reasonably explained that she did not persuasively
12 demonstrate her new residence, she had previously been
13 granted a venue change, and she admitted that she was in New
14 York several days each month.* See id.; see also Ke Zhen
15 Zhao v. U.S. Dep’t of Justice,
265 F.3d 83, 93 (2d Cir.
16 2001).
17 We need not reach Zheng’s challenge to the agency’s
18 pretermission of her asylum application as untimely because
*
We do not consider the government’s contention that
we lack jurisdiction to consider the IJ’s entirely
discretionary decision to deny a motion to change venue,
assuming hypothetical jurisdiction to consider Zheng’s
challenge to the denial of her motion because the
“jurisdictional issues are complex and the substance of
the claim is . . . plainly without merit.” Ivanishvili
v. U.S. Dep’t of Justice, 433 F.3d 332, 338 (2d Cir
2006).
05212012-30 3
1 the agency’s alternative denial of that form of relief was
2 dispositive of her claim. Zheng sought relief from removal
3 based on her assertion that she fears persecution because
4 she has had more than one child in the United States, which
5 they contend is in violation of China’s population control
6 program and because she is a member of the Chinese Democracy
7 Party (“CDP”) in the United States. For largely the same
8 reasons as this Court set forth in Jian Hui Shao v. Mukasey,
9 546 F.3d 138 (2d Cir. 2008), we find no error in the
10 agency’s denial of asylum, withholding of removal, and CAT
11 relief insofar as those claims were based on Zheng’s family
12 planning claim. See id. at 158-72.
13 Furthermore, the agency did not err in finding that
14 Zheng had not established her eligibility for relief based
15 on her CDP claim because she failed to demonstrate that the
16 Chinese government was aware of, or likely to become aware
17 of, her membership in the CDP. See Hongsheng Leng v.
18 Mukasey,
528 F.3d 135, 143 (2d Cir. 2008). “While
19 consistent, detailed, and credible testimony may be
20 sufficient to carry the alien’s burden, evidence
21 corroborating his story, or an explanation for its absence,
22 may be required where it would reasonably be expected.”
23 Chuilu Liu v. Holder,
575 F.3d 193, 196-97 (2d Cir. 2009)
05212012-30 4
1 (citing Diallo v. INS, 232 F.3d 279, 285-86 (2d Cir. 2000)).
2 The agency reasonably found that Zheng’s testimony regarding
3 her assertion that authorities were aware of her CDP
4 membership was not sufficiently credible or persuasive to
5 carry her burden of proof and required reasonably available
6 corroborating evidence. See id.; see also 8 U.S.C.
7 § 1158(b)(1)(B)(i). Moreover, the agency did not err in
8 finding that Zheng failed to provide reasonably available
9 corroborating evidence from her mother. See Chuilu, 575
10 F.3d at 196-98.
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, Zheng’s motion for
13 a stay of removal in connection with this petition is DENIED
14 as moot. Any pending request for oral argument in this
15 petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
05212012-30 5
