         08-4238-ag
         Yang v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A079 319 291
                           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 8 th day of February, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                      Chief Judge,
 9                PIERRE N. LEVAL,
10                PETER W. HALL,
11                      Circuit Judges.
12       _______________________________________
13
14       JIN YUN YANG,
15                Petitioner,
16
17                        v.                                    08-4238-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent. 1
22
23       _______________________________________
24
25
26
27


                      1
                   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 respondent in this case.
 1   FOR PETITIONER:           Durga Prasad Bhurtel, New York, New
 2                             York.
 3
 4   FOR RESPONDENT:           Tony West, Assistant Attorney
 5                             General; Linda S. Wernery, Assistant
 6                             Director; Susan Bennett Green, Trial
 7                             Attorney, Office of Immigration
 8                             Litigation, United States Department
 9                             of Justice, Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

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

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

14   is DENIED.

15       Jin Yun Yang, a native and citizen of China, seeks

16   review of a July 30, 2008 order of the BIA affirming the

17   October 6, 2006 decision of Immigration Judge (“IJ”) Sandy

18   K. Hom, which denied her application for asylum, withholding

19   of removal, and relief under the Convention Against Torture

20   (“CAT”).     In re Jin Yun Yang, No. A079 319 291 (B.I.A. July

21   30, 2008), aff’g No. A079 319 291 (Immig. Ct. N.Y. City Oct.

22   6, 2006).     We assume the parties’ familiarity with the

23   underlying facts and procedural history in this case.

24       We review the agency’s factual findings under the

25   substantial evidence standard.      8 U.S.C. § 1252(b)(4)(B);

26   see also Manzur v. DHS, 494 F.3d 281, 289 (2d Cir. 2007).

27   We review de novo questions of law and the application of



                                     2
1    law to undisputed fact.   See Salimatou Bah v. Mukasey, 529

2    F.3d 99, 110 (2d Cir. 2008).

3        Although an applicant’s credible testimony alone may

4    suffice to carry her burden of proof, an IJ may “require

5    that credible testimony . . . be corroborated in

6    circumstances in which one would expect corroborating

7    evidence to be available and presented in the immigration

8    hearing.”   Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir.

9    2009) (internal citation omitted).   Before denying a claim

10   based solely on an applicant’s failure to provide

11   corroborating evidence, the agency must “explain

12   specifically, either in its decision or otherwise in the

13   record: (1) why it is reasonable under the BIA’s standards

14   to expect such corroboration; and (2) why [the applicant’s]

15   proffered explanations for the lack of such corroboration

16   are insufficient.”   Diallo v. INS, 232 F.3d 279, 290 (2d

17   Cir. 2000); see In re S-M-J-, 21 I. & N. Dec. 722 , 724 (BIA

18   1997).

19       During her initial removal hearing in October 2001, the

20   IJ noted the absence from the record of any medical

21   documentation demonstrating that Yang was forcibly

22   sterilized, any evidence demonstrating that she was fined


                                    3
1    for violating the Chinese family planning policy, and any

2    affidavits or testimony from her relatives, including her

3    husband who was in the United States .   On remand, Yang was

4    given another opportunity to present such evidence, but

5    failed to do so.

6        Yang asserts that the agency erred in requiring her to

7    provide evidence that she was forcibly sterilized.     However,

8    she herself testified that she had proof that she was

9    sterilized but that she could not find it.    Further, Yang

10   testified that she paid a fine to family planning officials

11   but did not recall where she put the receipt.    Finally, Yang

12   claimed that her husband could not testify because he was

13   working.   As the BIA found, after five years, Yang “did not

14   provide documents that she mentioned in [her] testimony,”

15   and failed to provide the testimony of or an affidavit from

16   her husband.   Contrary to Yang’s assertion that she

17   explained his absence, the BIA reasonably rejected Yang’s

18   assertion that her husband could not testify because he had

19   to work, because it did not excuse her failure to provide an

20   affidavit from him.   See Diallo, 232 F.3d at 290; Majidi v.

21   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (finding that

22   the agency need not credit an applicant’s explanations

23   unless those explanations would compel a reasonable fact-

                                   4
1    finder to do so).   The BIA also noted that Yang did not

2    request a continuance to select a date when her husband

3    could testify.

4        Ultimately, substantial evidence supports the agency’s

5    finding that Yang failed to present reasonably available

6    corroboration and thus failed to meet her burden of

7    establishing eligibility for asylum.   See Diallo, 232 F.3d

8    at 290.   Because Yang was unable to show the objective

9    likelihood of persecution needed to make out an asylum

10   claim, she was necessarily unable to meet the higher

11   standard required to succeed on a claim for withholding of

12   removal or CAT relief.   See Paul v. Gonzales, 444 F.3d 148,

13   156 (2d Cir. 2006); Xue Hong Yang, 426 F.3d at 523.

14        For the foregoing reasons, the petition for review is

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

16   removal that the Court previously granted in this petition

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

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

19   oral argument in this petition is DENIED in accordance with

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

21   Circuit Local Rule 34(b).

22                               FOR THE COURT:
23                               Catherine O’Hagan Wolfe, Clerk
24
25
26


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