         12-1880
         Fang v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A089 915 673
                           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 11th day of February, two thousand fourteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                BARRINGTON D. PARKER,
10                     Circuit Judges.
11       _____________________________________
12
13       SHUNJI FANG,
14                Petitioner,
15
16                        v.                                    12-1880
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               John X. Wang, Law Offices of Wang &
24                                     Associates, New York, New York. M.
25                                     Omar Chaudry, Huntington, New York.
26
27       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
28                                     Attorney General; Emily Anne
29                                     Radford, Assistant Director; C.
30                                     Frederick Sheffield, Trial Attorney,
31                                     Office of Immigration Litigation,
32                                     United States Department of Justice,
33                                     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 Shunji Fang, a native and citizen of China,

 6   seeks review of an Apr. 9, 2013, decision of the BIA

 7   affirming a January 22, 2010, decision of Immigration Judge

 8   (“IJ”) Alan Vomacka, denying Fang’s application for asylum,

 9   withholding of removal and relief under the Convention

10   Against Torture (“CAT”).    In re Shunji Fang, No. A089 915

11   673 (B.I.A. Apr. 9, 2013), aff’g No. A089 915 673 (Immig.

12   Ct. N.Y. City Jan. 22, 2010).       We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15          Under the circumstances of this case, we review the

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

17   arguments for denying relief that were not considered by the

18   BIA.    See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

19   520, 522 (2d Cir. 2005).    The applicable standards of review

20   are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin

21   Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

22          The agency may require corroboration despite otherwise

23   credible testimony.    See Chuilu Liu v. Holder, 575 F.3d 193,

                                     2
 1   198 (2d Cir. 2009) (holding that “a failure to corroborate

 2   can suffice, without more, to support a finding that an

 3   alien has not met his burden of proof”).      Before denying a

 4   claim solely because of an applicant’s failure to provide

 5   corroborating evidence, the IJ must: (1) identify the

 6   specific pieces of missing, relevant documentation and

 7   explain why it was reasonably available; (2) provide the

 8   petitioner an opportunity to explain the omission; and (3)

 9   assess any explanation given.       See id.; see also 8 U.S.C.

10   § 1158(b)(1)(B)(ii).

11       Here, given that Fang testified that she was detained

12   for two weeks after she and 14 others were arrested at a

13   religious gathering at her home, the IJ reasonably required

14   her to provide statements from her family or fellow

15   practitioners, as these individuals would have first-hand

16   knowledge of these events.

17       Contrary to Fang’s argument, the IJ did assess her

18   explanation for the lack of corroborating evidence, and

19   substantial evidence supports the agency’s determination

20   that her explanations were insufficient.      The IJ noted that,

21   although Fang testified that her parents were unaware of her

22   arrest and detention, she had testified that her parents


                                     3
 1   cared for her daughter while she was detained, and

 2   reasonably concluded that her parents could have submitted a

 3   statement that they watched her daughter during that time

 4   period, even if not aware that Fang had been detained.     As

 5   to Fang's husband’s testimony that his parents did not

 6   submit a statement because they were illiterate, the IJ

 7   reasonably found that his parents could have obtained

 8   assistance in preparing a statement for the court.   See

 9   Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (under

10   substantial evidence standard, agency need not credit an

11   applicant’s explanations unless those explanations would

12   compel a reasonable fact-finder to do so).

13       The IJ further found that Fang had not provided any

14   background evidence relating to religious persecution in

15   China, and she has failed to provide any explanation for

16   this omission. See Chuilu Liu, 575 F.3d at 199 (finding that

17   an explanation for a failure to provide corroborating

18   evidence can be made “either in a motion to reopen or on

19   appeal to the BIA”).

20       Fang’s assertion that her husband’s testimony

21   adequately corroborated her claim is unpersuasive, as he was

22   not in China when Fang was detained and their testimony was


                                  4
 1   inconsistent in several respects, including the length of

 2   Fang’s detention.     Accordingly, substantial evidence

 3   supports the agency’s determination that Fang could

 4   reasonably provide corroborating evidence and, as she had

 5   not, she did not establish past persecution or a

 6   well-founded fear of future persecution.     See id. at 196-99.

 7       We will not consider Fang’s challenge to the IJ’s

 8   adverse credibility determination because the BIA did not

 9   affirm on this basis.     Xue Hong Yang, 426 F.3d at 522.

10   Fang’s remaining arguments were not raised in her counseled

11   brief to the BIA, and we decline to review them.     See Lin

12   Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1 (2d

13   Cir. 2007).

14       Because Fang was unable to show the objective

15   likelihood of persecution needed to make out an asylum

16   claim, she was necessarily unable to meet the higher

17   standard required to succeed on a claim for withholding of

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

19   156 (2d Cir. 2006).

20       For the foregoing reasons, the petition for review is

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

22   removal that the Court previously granted in this petition

23   is VACATED, and any pending motion for a stay of removal in
                                     5
1   this petition is DISMISSED as moot. Any pending request for

2   oral argument in this petition is DENIED in accordance with

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

4   Circuit Local Rule 34.1(b).

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




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