         10-1835-ag
         Fang v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A098 349 811
                           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 5th day of April, two thousand eleven.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                JOSÉ A. CABRANES,
 9                RICHARD C. WESLEY,
10                   Circuit Judges.
11       ______________________________________
12
13       YU SAI FANG,
14                Petitioner,
15
16                        v.                                    10-1835-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Thomas V. Massucci, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; John S. Hogan, Senior
28                                     Litigation Counsel; Stefanie A.
29                                     Svoren, Trial Attorney, Civil
30                                     Division, Office of Immigration
31                                     Litigation, U.S. Department of
32                                     Justice, Washington D.C.
 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, Yu Sai Fang, a native and citizen of China,

 6   seeks review of an April 13, 2010, decision of the BIA

 7   affirming the May 13, 2008, decision of Immigration Judge

 8   (“IJ”) Alan Vomacka denying her application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”). In re Yu Sai Fang, No. A098 349 811

11   (B.I.A. Apr. 13, 2010), aff’g No. A098 349 811 (Immig. Ct.

12   N.Y.C. May 13, 2008).   We assume the parties’ familiarity

13   with the underlying facts and procedural history of the

14   case.

15       Under the circumstances of this case, we review the

16   IJ’s decision minus the arguments for denying relief that

17   were not affirmed by the BIA.       See Xue Hong Yang v. U.S.

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

19   applicable standards of review are well-established.

20   See 8 U.S.C. § 1252(b)(4)(B); Bah v. Mukasey, 529 F.3d 99,

21   110 (2d Cir. 2008); Dong Gao v. BIA, 482 F.3d 122, 126 (2d

22   Cir. 2007).   Because the BIA did not affirm the IJ’s

23   credibility determination, we address only the agency’s

                                     2
 1   denial of relief based on Fang’s failure to meet her burden

 2   of proof.   See Xue Hong Yang, 426 F.3d at 522; Chuilu Liu v.

 3   Holder, 575 F.3d 193, 196-98 (2d Cir. 2009).

 4       The agency reasonably concluded that Fang failed to

 5   meet her burden of proof.    Although an applicant’s credible

 6   testimony alone may be enough to carry her burden of proof,

 7   8 C.F.R. § 208.13(a), the agency may nonetheless require

 8   that testimony be corroborated if one would reasonably

 9   expect corroborating evidence to be available.     See Chuilu

10   Liu, 575 F.3d at 196-98.

11       In determining that Fang’s testimony was insufficiently

12   detailed, consistent, or believable, and thus required

13   corroboration, the agency reasonably relied upon

14   inconsistencies between her testimony and the transcript of

15   her husband’s testimony at his own hearing regarding the

16   details of her abortion, whether they would be permitted to

17   have an additional child under the family planning policy,

18   and when Fang had been forced to have an intrauterine device

19   inserted.   The agency was not required to credit Fang’s

20   explanation that her account was correct and her husband’s

21   account was incorrect.     See Majidi v. Gonzales, 430 F.3d 77,

22   80-81 (2d Cir. 2005) (holding that the agency need not

23   credit an applicant’s explanations for inconsistent

                                     3
 1   testimony unless those explanations would compel a

 2   reasonable fact-finder to do so).   Although Fang claims that

 3   reliance on her husband’s hearing transcript, when he was

 4   found not credible, violated her right to due process,

 5   because the agency did not rely on this transcript to make

 6   an adverse credibility determination, but only to support

 7   its finding that Fang needed to provide corroboration, Fang

 8   has not established that she was denied a full and fair

 9   opportunity to present her claims or was otherwise deprived

10   of fundamental fairness.   See Burger v. Gonzales, 498 F.3d

11   131, 134 (2d Cir. 2007).

12       The agency’s determination that further corroboration

13   was required also is supported by its finding that Fang’s

14   submission of an abortion certificate undermined her

15   testimony that she was forced to undergo an abortion, as she

16   was not able to offer a reasonable explanation for why she

17   was issued the certificate or why she did not take steps to

18   verify its authenticity after a government investigation

19   concluded it did not conform with other abortion

20   certificates.   See Tu Lin v. Gonzales,   446 F.3d 395, 400

21   (2d Cir. 2006) (explaining that an IJ may properly

22   disbelieve an asylum applicant’s claim that the Chinese

23   government issued an abortion certificate following an

                                   4
 1   involuntary abortion, when the State Department reports that

 2   its officials are “unaware” of the Chinese government

 3   issuing such certificates for anything other than voluntary

 4   abortions).

 5       Given these inconsistencies and the questionable nature

 6   of the abortion certificate, the agency was permitted to

 7   require corroborating evidence.     See Chuilu Liu, 575 F.3d at

 8   196-98.   While Fang argues that the agency failed to find

 9   that the requested corroborating evidence was reasonably

10   available to her, the agency specifically found that Fang’s

11   husband failed to testify or provide an affidavit, that Fang

12   failed to present medical documents or accident reports

13   regarding her husband’s accident, or affidavits from her

14   husband’s parents as to her husband’s disappearance, and

15   that Fang failed to establish that this evidence was not

16   reasonably available.   While Fang further argues that the

17   agency erred in concluding that the evidence was reasonably

18   available to her, as the agency noted, Fang indicated that

19   she was in contact with her husband’s parents, who were

20   taking care of her daughter, and explained only that it

21   would be difficult for them to provide a letter because they

22   were illiterate and old.     See Chuilu Liu, 575 F.3d at 197-

23   98; 8 U.S.C. § 1252(b)(4).    The agency also reasonably


                                     5
 1   concluded that Fang’s daughter’s birth certificate was

 2   reasonably available, as Fang testified that she had the

 3   original birth certificate in China.    Chuilu Liu, 575 F.3d

 4   at 197-98.

 5       Given that Fang did not present evidence reasonably

 6   available to her to support her claim, the agency did not

 7   err in determining that she failed to demonstrate her

 8   eligibility for asylum or withholding of removal.    See

 9   Chuilu Liu, 575 F.3d at 196-99.

10       For the foregoing reasons, the petition for review is

11   DENIED.   As we have completed our review, any stay of

12   removal that the Court previously granted in this petition

13   is VACATED, and any pending motion for a stay of removal in

14   this petition is DISMISSED as moot.    Any pending request for

15   oral argument in this petition is DENIED in accordance with

16   Federal Rule of Appellate Procedure 34(a)(2), and Second

17   Circuit Local Rule 34.1(b).

18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk
20
21
22




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