    08-3294-ag
    Zeng v. Holder
                                                                                   BIA
                                                                          Balasquide, IJ
                                                                          A095 710 344

                      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 15 th day of March, two thousand ten.

    PRESENT:
             ROBERT A. KATZMANN,
             BARRINGTON D. PARKER,
             PETER W. HALL,
                     Circuit Judges.
    ______________________________________

    SHUI XIAN ZENG,
                                  Petitioner,

                     v.                                    08-3294-ag
                                                           NAC
    ERIC H. HOLDER, JR., *
    UNITED STATES ATTORNEY GENERAL,
                           Respondent.
    ______________________________________

    FOR PETITIONER:               Liu Yu, New York, N.Y.



             *
          Pursuant to Federal Rule of Appellate Procedure
    43(c)(2), Attorney General Eric H. Holder, Jr., is
    automatically substituted for former Attorney General
    Michael B. Mukasey as the respondent in this case.
FOR RESPONDENT:        Michael F. Hertz, Acting Assistant
                       Attorney General; M. Jocelyn Lopez
                       Wright, Senior Litigation Counsel;
                       Ilissa M. Gould, Trial Attorney,
                       Office of Immigration Litigation,
                       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.

     Shui Xian Zeng, a native and citizen of the People’s
Republic of China, seeks review of a June 18, 2008, order of
the BIA affirming the November 1, 2006, decision of
Immigration Judge (“IJ”) Javier Balasquide, which denied
Zeng’s application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Shui Xian Zeng No. A095 710 344 (BIA June 18, 2008), aff’g
No. A095 710 344 (Immig. Ct. N.Y. City Nov. 1, 2006). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.

     Under the circumstances of this case, we consider both
the IJ’s and the BIA’s opinions. See Zaman v. Mukasey, 514
F.3d 233, 237 (2d Cir. 2008) (per curiam). The applicable
standards of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
(2d Cir. 2009).

     The petitioner does not challenge the agency’s
determination that she did not establish past persecution,
conceding that the only issue before this court is whether
the agency erred in determining that she failed to establish
a well-founded fear of future persecution. She asserts in
her brief that her “activities in the United States will
definitely corroborate her claim that she has promoted Falun
Gong through handing out Falun Gong flyers to the public.”
In this regard Zeng recognizes the importance of proving her
ongoing support of Falun Gong in this country, but she fails
to appreciate the IJ’s analysis of the proof that she
offered regarding that support.


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     Because she did not adequately corroborate her testimony
that she had been engaged in continuing distribution of
Falun Gong materials since she arrived in this country, the
IJ determined that Zeng did not meet her burden to show her
distribution activities were such that she would continue
them if she were returned to China. As the IJ noted, such
corroborating evidence was reasonably available to the
petitioner in the form of live testimony from her husband or
from witnesses who periodically provided her with Falun Gong
flyers for distribution on Canal Street. The IJ was
entitled to consider the absence of such corroboration in
deciding that the petitioner did not sustain her burden to
show she was actually engaged in on-going distribution
activities. See 8 U.S.C. § 1158(b)(1)(B)(ii). The
petitioner having failed in that regard, the IJ did not err
in finding that Zeng failed to prove she had a well-founded
fear of future persecution.

     To the extent the petitioner is arguing here that her
proof regarding her on-going distribution activities was
sufficient to sustain her burden, she made no such argument
before the BIA, stating that her fear was due to “her past
involvement with Falun Gong in China, instead of her
activities in the United States.” The BIA did not
independently address the IJ’s findings concerning events in
the United States. The petitioner’s arguments regarding
those activities are therefore unexhausted. See Lin Zhong
v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1, 122 (2d
Cir. 2007); Theodoropoulos v. I.N.S., 358 F.3d 162, 171 (2d
Cir. 2004).

     The only issue properly before us is whether substantial
evidence supports the agency’s determination that the
petitioner failed to demonstrate a well-founded fear of
persecution based on her activities in China. The
petitioner claims that she fears arrest upon her return to
China because government officials learned that she was a
Falun Gong supporter and that she distributed flyers.
However, she does not assert that authorities continued to
visit her home or look for her after August 2006 and
testified that she did not have contact with the authorities
while she was stayed at her brother’s home in Beijing.


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Accordingly, we are not compelled to reach a conclusion
contrary to that of the agency. See Jian Xing Huang v. INS,
421 F.3d 125, 128-29 (2d Cir. 2005) (holding that, absent
solid support in the record for the petitioner’s assertion
that he would persecuted, his fear was “speculative at
best”).

     Because the petitioner was unable to meet her burden of
proof for asylum, her claim for withholding of removal
necessarily fails. See Paul v. Gonzales, 444 F.3d 148, 156
(2d Cir. 2006). The petitioner does not challenge the
agency’s denial of her claim for CAT relief.

     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition 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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