Filed: Apr. 07, 2017
Latest Update: Mar. 03, 2020
Summary: 15-4122 Weng v. Sessions BIA Hom, IJ A200 283 269 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 NOTAT
Summary: 15-4122 Weng v. Sessions BIA Hom, IJ A200 283 269 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 NOTATI..
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15-4122
Weng v. Sessions
BIA
Hom, IJ
A200 283 269
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
TO 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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 7th day of April, two thousand seventeen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 MEI HUA WENG,
14 Petitioner,
15
16 v. 15-4122
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael Brown, New York, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Attorney General; Linda S.
27 Wernery, Assistant Director;
28 Matthew M. Downer, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of
31 Justice, Washington, DC.
32
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 Petitioner Mei Hua Weng, a native and citizen of the
6 People’s Republic of China, seeks review of a December 7,
7 2015, decision of the BIA, affirming a June 18, 2014,
8 decision of an Immigration Judge (“IJ”) denying Weng’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Mei Hua
11 Weng, No. A200 283 269 (B.I.A. Dec. 7, 2015), aff’g No. A200
12 283 269 (Immig. Ct. N.Y. City June 18, 2014). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well established. 8
19 U.S.C. § 1252(b)(4); Chuilu Liu v. Holder,
575 F.3d 193,
20 194, 196 (2d Cir. 2009); Diallo v. INS,
232 F.3d 279, 287
21 (2d Cir. 2000).
22 In assessing whether an applicant meets her burden of
23 proof, the agency “may weigh the credible testimony along
2
1 with other evidence of record.” 8 U.S.C. §
2 1158(b)(1)(B)(ii). The agency may require
3 corroboration despite otherwise credible testimony, and
4 deny an application based on the failure to provide such
5 corroboration, if the corroborating evidence is reasonably
6 available. Id.; Yan Juan Chen v. Holder, 658 F.3d 246,
7 251-52 (2d Cir. 2011). Before denying a claim solely
8 based on an applicant’s failure to provide corroborating
9 evidence, the IJ generally must, either in his decision or
10 otherwise on the record, (1) identify the missing
11 evidence, and explain why it was reasonably available, and
12 (2) provide an opportunity for the applicant to explain
13 the omission and assess any explanation given. Chuilu
14
Liu, 575 F.3d at 197-99. “No court shall reverse a
15 determination made by a trier of fact with respect to the
16 availability of corroborating evidence . . . unless the
17 court finds . . . that a reasonable trier of fact is
18 compelled to conclude that such corroborating evidence is
19 unavailable.” 8 U.S.C. § 1252(b)(4).
20 The record does not compel a conclusion that the
21 evidence the IJ sought—medical records of Weng’s alleged
22 third pregnancy, documentation of the family planning
23 policy pertaining to her locality in China, and records of
3
1 her husband’s arrest and detention—was not reasonably
2 available. Id. Weng conceded at the hearing that she
3 made no effort to obtain any of the above-mentioned
4 evidence, and she did not state that the evidence was
5 unavailable. Chuilu
Liu, 575 F.3d at 197-98; see also 8
6 U.S.C. § 1252(b)(4); Jian Hui Shao v. Mukasey,
546 F.3d
7 138, 142, 148, 156-57, 165, 170 (2d Cir. 2008) (noting that
8 applicants must demonstrate that their violation of the
9 family planning policy would be punished in their local
10 area in a way that would give rise to an objectively
11 reasonably fear of persecution).
12 The agency also reasonably afforded diminished weight
13 to the evidence Weng produced. “We generally defer to the
14 agency’s evaluation of the weight to be afforded an
15 applicant’s documentary evidence.” Y.C. v. Holder, 741
16 F.3d 324, 332 (2d Cir. 2013). The letter from her village
17 committee in China was handwritten, unsigned by any
18 official, and unauthenticated (either officially or
19 through a letter from Weng’s mother to explain how and
20 from whom the letter was obtained), and her husband’s
21 letter was unsworn, came from an interested witness not
22 available for cross-examination, and was written for
23 purposes of the asylum application. See Matter of H-L-H-
4
1 & Z-Y- Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (agency
2 can give little weight to document drafted by interested
3 witness not subject to cross examination), rev’d on other
4 grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir.
5 2012).
6 Weng’s failure to corroborate her alleged violation
7 of China’s coercive family planning policy is dispositive
8 of asylum, withholding of removal, and CAT relief because
9 her claims to all three forms of relief were based on the
10 same facts: a forced abortion and the accompanying fear of
11 sterilization. See Lecaj v. Holder,
616 F.3d 111, 119-20
12 (2d Cir. 2010).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, the pending motion
15 for a stay of removal in this petition is DISMISSED as moot.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
5
