19-1119 Zheng v. Garland BIA Hom, IJ A205 438 325 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 27th day of December, two thousand twenty-one. 5 6 PRESENT: 7 SUSAN L. CARNEY, 8 JOSEPH F. BIANCO, 9 Circuit Judges.* 10 _____________________________________ 11 12 JINRONG ZHENG, 13 Petitioner, 14 15 v. 19-1119 16 NAC 17 MERRICK B. GARLAND, UNITED 18 STATES ATTORNEY GENERAL, 19 Respondent. 20 _____________________________________ 21 22 FOR PETITIONER: Marta Bachynska, Law Offices of 23 Yevgeny Samokhleb, P.C., New York, 24 NY. 25

* Judge Robert A. Katzmann, originally a member of the panel, died before this order issued. The two remaining panelists, who are in agreement, have determined the matter. See 2d Cir. IOP E(b). 1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 2 General; John S. Hogan , Assistant 3 Director; Matthew A. Spurlock, 4 Trial Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, D.C.

8 UPON DUE CONSIDERATION of this petition for review of a

9 Board of Immigration Appeals (“BIA”) decision, it is hereby

10 ORDERED, ADJUDGED, AND DECREED that the petition for review

11 is DENIED.

12 Petitioner Jinrong Zheng, a native and citizen of the

13 People’s Republic of China, seeks review of an April 11, 2019

14 decision of the BIA affirming a September 8, 2017 decision of

15 an Immigration Judge (“IJ”) denying asylum, withholding of

16 removal, and protection under the Convention Against Torture

17 (“CAT”). In re Jinrong Zheng, No. A 205 438 325 (B.I.A. Apr.

18 11, 2019), aff’g No. A 205 438 325 (Immig. Ct. N.Y. City Sept.

19 8, 2017). We assume the parties’ familiarity with the

20 underlying facts and procedural history.

21 We have reviewed the IJ’s decision as modified by the

22 BIA. See Xue Hong Yang v. U.S. Dep’t of justice,

(2d Cir. 2005). The applicable standards of review

24 are well established. See

(b)(4); Wei Sun v.

25 Sessions,

(2d Cir. 2018). Upon such review, 2 1 we find no error in the agency’s conclusion that Zheng failed

2 to carry his burden of proof as to his claim that he was

3 arrested, detained, and beaten for practicing Catholicism in

4 China.

5 “The testimony of the applicant may be sufficient to

6 sustain the applicant’s burden without corroboration, but

7 only if the applicant satisfies the trier of fact that the

8 applicant’s testimony is credible, is persuasive, and refers

9 to specific facts sufficient to demonstrate that the

10 applicant is a refugee. . . . Where the trier of fact

11 determines that the applicant should provide evidence that

12 corroborates otherwise credible testimony, such evidence must

13 be provided unless the applicant does not have the evidence

14 and cannot reasonably obtain the evidence.” 8 U.S.C.

15 § 1158(b)(1)(B)(ii). That is, even absent an adverse

16 credibility determination, a lack of corroboration may

17 provide an independent basis for the denial of relief if the

18 agency identifies reasonably available evidence that should

19 have been presented. See id. §§ 1158(b)(1)(B)(ii),

20 1252(b)(4); Chuilu Liu v. Holder,

, 196–97 (2d

21 Cir. 2009). Before denying a claim solely on an applicant’s

3 1 failure to provide corroborating evidence, however, the IJ

2 must “(1) point to specific pieces of missing evidence and

3 show that it was reasonably available, (2) give the applicant

4 an opportunity to explain the omission, and (3) assess any

5 explanation given.” Wei Sun,

. Advance notice

6 of the need for specific corroboration and an opportunity to

7 gather the evidence are not required, because “the alien bears

8 the ultimate burden of introducing such evidence without

9 prompting from the IJ.”

(quoting Chuilu Liu,

). Where the IJ has identified the missing evidence,

11 we may reverse the agency’s decision only if “a reasonable

12 trier of fact is compelled to conclude that such corroborating

13 evidence is unavailable.”

(b)(4); see Yan

14 Juan Chen v. Holder,

(2d Cir. 2011).

15 Here, the agency clearly identified the missing evidence

16 that it sought: letters from Zheng’s uncle and parents to

17 corroborate that he was arrested and detained along with his

18 uncle, that his mother paid a bribe for his release, and that

19 authorities continue to look for him at his parents’ home.

20 See Chuilu Liu, 575 F.3d at 198–99. Zheng did not adequately

21 demonstrate that he attempted to timely obtain documentation

4 1 to corroborate this aspect of his claim. His explanation in

2 testimony before the IJ that he had not yet received letters

3 mailed from China does not establish that the evidence was

4 unavailable: he had more than two years to prepare for his

5 hearing before the IJ and did not present the requested

6 evidence later either, on appeal to the BIA. See 8 U.S.C.

7 § 1252(b)(4). His objection to the weight the agency placed

8 on the absence of this evidence does not suggest that it was

9 unavailable or undercut the agency’s determination to treat

10 its absence as significant. See Y.C. v. Holder,

324, 332 (2d Cir. 2013) (“We generally defer to the agency’s

12 evaluation of the weight to be afforded an applicant’s

13 documentary evidence.”). Zheng’s failure to meet his burden

14 of proof for asylum is dispositive of all of his claims for

15 relief. See Lecaj v. Holder,

(2d Cir.

16 2010).

17 For the foregoing reasons, the petition for review is

18 DENIED. All pending motions and applications are DENIED and

19 stays VACATED.

20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, 22 Clerk of Court

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