         13-2442
         Zhang v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A087 974 674
                            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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 17th day of November, two thousand fourteen.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                     Chief Judge,
 9                DENNY CHIN,
10                RAYMOND J. LOHIER, JR.,
11                     Circuit Judges.
12       _____________________________________
13
14       YONG ZHI ZHANG,
15                Petitioner,
16
17                         v.                                   13-2442
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Jie Han, New York, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Ernesto H. Molina, Jr.,
28                                     Assistant Director; Yanal H. Yousef,
29                                     Trial Attorney; Thomas A. Bryan, Law
30                                     Clerk, Office of Immigration
31                                     Litigation, United States Department
32                                     of 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 Yong Zhi Zhang, a native and citizen of

 6   China, seeks review of a May 30, 2013, decision of the BIA,

 7   affirming the November 8, 2011, decision of an Immigration

 8   Judge (“IJ”), denying asylum, withholding of removal, and

 9   relief under the Convention Against Torture (“CAT”).     In re

10   Yong Zhi Zhang, No. A087 974 674 (B.I.A. May 30, 2013),

11   aff’g No. A087 974 674 (Immig. Ct. N.Y. City Nov. 8, 2011).

12   We assume the parties’ familiarity with the underlying facts

13   and procedural history in this case.

14       Under the circumstances of this case, we review the

15   IJ’s decision as modified by the BIA, i.e., minus the bases

16   for denying relief that the BIA expressly declined to

17   consider (credibility, nexus, and failure to submit

18   renunciation statement).   See Xue Hong Yang v. U.S. Dep’t of

19   Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.

20   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The applicable

21   standards of review are well established.     See 8 U.S.C.

22   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

23   (2d Cir. 2009).

                                   2
 1       For applications such as Zhang’s, which are governed by

 2   the REAL ID Act, “[t]he testimony of the applicant may be

 3   sufficient to sustain the applicant’s burden without

 4   corroboration, but only if the applicant satisfies the trier

 5   of fact that the applicant’s testimony is credible, is

 6   persuasive, and refers to specific facts sufficient to

 7   demonstrate that the applicant is a refugee.”    8 U.S.C.

 8   § 1158(b)(1)(B)(ii).    The agency did not err in requiring

 9   reasonably available corroborating evidence in Zhang’s case

10   because his testimony was insufficiently “persuasive” and

11   “specific” regarding the beatings he purportedly suffered.

12   See Yan Juan Chen v. Holder, 658 F.3d 246, 252 (2d Cir.

13   2011).

14       “Where the trier of fact determines that the applicant

15   should provide evidence that corroborates otherwise credible

16   testimony, such evidence must be provided unless the

17   applicant does not have the evidence and cannot reasonably

18   obtain the evidence.”    8 U.S.C. § 1158(b)(1)(B)(ii). The

19   REAL ID Act further makes clear that “[n]o court shall

20   reverse a determination made by a trier of fact with respect

21   to the availability of corroborating evidence . . . [unless]

22   a reasonable trier of fact is compelled to conclude that


                                    3
 1   such corroborating evidence is unavailable.”

 2   8 U.S.C. § 1252(b)(4)(emphases added). Here, the IJ

 3   identified that available corroborating evidence was

 4   available in the form of an affidavit from the herbalist who

 5   Zhang alleges treated his injuries in 2009 after he was

 6   beaten and left in the sun for hours without water.

 7       Zhang concedes that he made no attempt to procure such

 8   a statement from the herbalist through his wife in China. He

 9   argues that his failure to do so was justified, however,

10   because it would have been “futile or imprudent” to seek out

11   the herbalist’s statement as the injury occurred several

12   years ago, the herbalist may have forgotten, or the

13   herbalist might be too afraid to provide a statement. We

14   disagree. Because Zhang failed to even attempt to procure

15   the affidavit based on purely speculative reasons that the

16   corroborating evidence was unavailable, the agency

17   reasonably rejected Zhang’s explanations for not providing

18   such evidence. See 8 U.S.C. § 1252(b)(4).

19       Contrary to Zhang’s contention, the record does not

20   compellingly suggest that the IJ ignored his wife’s letter.

21   See Xiao Ji Chen v. US Dep’t of Justice, 471 F.3d 315, 337

22   n.17 (2d Cir. 2006) (presuming that the agency “has taken


                                  4
 1   into account all of the evidence before [it], unless the

 2   record compellingly suggests otherwise”).    The IJ explicitly

 3   acknowledged that her letter was included in the record.

 4   And, like Zhang’s testimony, the letter was vague concerning

 5   the details of Zhang’s detention and beatings.    Therefore,

 6   because her letter failed to supply any information

 7   regarding the severity of Zhang’s beatings or resulting

 8   injuries, which was the agency’s focus in requiring a letter

 9   from the herbalist who treated him, it did not corroborate

10   his claim or satisfy his burden of proving past persecution.

11   See Yan Juan Chen, 658 F.3d at 252-53; see also Jian Qiu Liu

12   v. Holder, 632 F.3d 820, 822 (2d Cir. 2011) (“[W]e find no

13   error in the BIA’s conclusion that [petitioner] failed to

14   establish persecution because . . ., prior to his arrest and

15   detention by local police, he suffered only minor bruising

16   from an altercation with family planning officials, which

17   required no formal medical attention and had no lasting

18   physical effect.” (emphasis in original)).

19       We find no error in the agency’s decision declining to

20   admit into evidence the State Department’s 2011 Religious

21   Freedom Report because Zhang proffered it after the

22   submission deadline and did not make a timely motion for its

23
                                  5
1   inclusion.   See Immigration Court Practice Manual,

2   § 3.1(d)(ii), (iii).

3       For the foregoing reasons, the petition for review is

4   DENIED.

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk
7
8
9




                                  6
