     15-4088
     Jin v. Sessions
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A205 222 247

                            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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   5th day of May, two thousand seventeen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            RICHARD C. WESLEY,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   MINGCHUN JIN,
14            Petitioner,
15
16                     v.                                            15-4088
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED STATES
19   ATTORNEY GENERAL,*
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Carly B. Wiskoff, New York, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; M.

     * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Jefferson B. Sessions III is automatically substituted for
     former Attorney General Loretta E. Lynch as the Respondent in this
     case.
1                               Jocelyn Lopez Wright, Senior
2                               Litigation Counsel; Anthony J.
3                               Messuri, Trial Attorney, Office of
4                               Immigration Litigation, United
5                               States Department of Justice,
6                               Washington, D.C.
7
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 is

11   DENIED.

12       Petitioner Mingchun Jin, a native and citizen of the

13   People’s Republic of China, seeks review of a November 23, 2015

14   decision of the BIA affirming a July 30, 2014 decision of an

15   Immigration Judge (“IJ”) denying Jin’s application for asylum,

16   withholding of removal, and relief under the Convention Against

17   Torture (“CAT”).   In re Mingchun Jin, No. A205 222 247 (B.I.A.

18   Nov. 23, 2015), aff’g No. A205 222 247 (Immig. Ct. N.Y. City

19   July 30, 2014).    We assume the parties’ familiarity with the

20   underlying facts and procedural history in this case.

21       Under the circumstances of this case, we have reviewed the

22   IJ’s decision as modified by the BIA.   See Xue Hong Yang v. U.S.

23   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).      Because

24   the BIA did not affirm or rely on the adverse credibility

                                    2
1    determination we, as did the BIA, assume credibility. See Yan

2    Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir. 2005).

3    Accordingly, the dispositive issue is whether the agency erred

4    in its alternative conclusion that Jin failed to meet her burden

5    of proof.      The applicable standards of review are well

6    established.   8 U.S.C. § 1252(b)(4); Chuilu Liu v. Holder, 575

7    F.3d 193, 194, 196 (2d Cir. 2009); Diallo v. INS, 232 F.3d 279,

8    287 (2d Cir. 2000).

9         In assessing whether an applicant meets her burden of

10   proof, the agency “may weigh the credible testimony along with

11   other evidence of record.”    8 U.S.C. § 1158(b)(1)(B)(ii).

12   The agency may require corroboration despite otherwise

13   credible testimony, and deny an application based on the

14   failure to provide such corroboration, if the corroborating

15   evidence is reasonably available.     Id.; Yan Juan Chen v.

16   Holder, 658 F.3d 246, 251-52 (2d Cir. 2011).    Before denying

17   a claim solely because of an applicant’s failure to provide

18   corroborating evidence, the IJ generally must, either in his

19   decision or otherwise on the record, (1) identify the missing

20   evidence and explain why it was reasonably available, and

21   (2) provide an opportunity for the applicant to explain the
                                    3
1    omission and assess any explanation given.     Chuilu Liu, 575

2    F.3d at 197-99.   “No court shall reverse a determination made

3    by a trier of fact with respect to the availability of

4    corroborating evidence . . . unless the court

5    finds . . . that a reasonable trier of fact is compelled to

6    conclude that such corroborating evidence is unavailable.”    8

7    U.S.C. § 1252(b)(4).

8          The IJ sought corroboration in the form of an affidavit

9    from Jin’s husband who resided in China and had knowledge of

10   Jin’s abortion and access to documentation of the family

11   planning policy specific to Jin’s home region as it relates

12   to persons of Korean descent. The record does not compel a

13   conclusion that the evidence was not reasonably available.

14   Id.   Jin had over two years to obtain the evidence, and her

15   speculation that her husband’s letter was “intercepted by the

16   government” due to its sensitive subject matter was not

17   compelling given that she testified to receiving other

18   documents from her husband.    Chuilu Liu, 575 F.3d at 197-98;

19   see also 8 U.S.C. § 1252(b)(4).    And Jin admitted she made no

20   effort to provide documentation of the family planning policy

21   in her region of China.   See Jian Hui Shao v. Mukasey, 546 F.3d
                                    4
1    138, 142, 148, 156-57, 165, 170 (2d Cir. 2008) (noting that

2    applicants must demonstrate that their violation of the family

3    planning policy would be punished in their local area in a way

4    that would give rise to an objectively reasonably fear of

5    persecution).

6         The agency also reasonably afforded limited weight to the

7    evidence Jin produced.    “We generally defer to the agency’s

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

9    documentary evidence.”    Y.C. v. Holder, 741 F.3d 324, 332 (2d

10   Cir. 2013).     The records of the abortion and IUD insertion

11   were labeled as consent forms for the procedures and made no

12   mention of force or coercion.       See Jian Hui Shao, 546 F.3d at

13   165, 172.

14        Jin’s failure to corroborate her alleged violation of

15   China’s coercive family planning policy is dispositive of

16   asylum, withholding of removal, and CAT relief because all

17   three forms of relief were based on the alleged forced abortion

18   and IUD insertion and the accompanying fear of sterilization.

19   See Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).

20       For the foregoing reasons, the petition for review is

21   DENIED.   As we have completed our review, any stay of removal
                                     5
1   that the Court previously granted in this petition is VACATED,

2   and any pending motion for a stay of removal in this petition

3   is DISMISSED as moot.   Any pending request for oral argument

4   in this petition is DENIED in accordance with Federal Rule of

5   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

6   34.1(b).

7                               FOR THE COURT:
8                               Catherine O’Hagan Wolfe, Clerk




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