     15-4122
     Weng v. Sessions
                                                                                 BIA
                                                                              Hom, IJ
                                                                         A200 283 269

                             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
 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 7th day of April, two thousand seventeen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            JOSÉ A. CABRANES,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   MEI HUA WENG,
14            Petitioner,
15
16                      v.                                     15-4122
17                                                             NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Michael Brown, New York, NY.
24
25   FOR RESPONDENT:                   Benjamin C. Mizer, Principal Deputy
26                                      Attorney    General;    Linda    S.
27                                      Wernery,    Assistant     Director;
28                                      Matthew M. Downer, Trial Attorney,
29                                      Office of Immigration Litigation,
30                                      United   States    Department    of
31                                      Justice, Washington, DC.
32
 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 Mei Hua Weng, a native and citizen of the

 6   People’s Republic of China, seeks review of a December 7,

 7   2015,    decision     of   the    BIA,       affirming   a   June   18,     2014,

 8   decision    of   an   Immigration         Judge    (“IJ”)    denying      Weng’s

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).                   In re Mei Hua

11   Weng, No. A200 283 269 (B.I.A. Dec. 7, 2015), aff’g No. A200

12   283 269 (Immig. Ct. N.Y. City June 18, 2014).                   We assume the

13   parties’     familiarity          with       the   underlying       facts     and

14   procedural history in this case.

15        Under the circumstances of this case, we have reviewed

16   the IJ’s decision as supplemented by the BIA.                   See Yan Chen

17   v.   Gonzales,      417    F.3d    268,      271   (2d   Cir.   2005).       The

18   applicable standards of review are well established.                            8

19   U.S.C. § 1252(b)(4); Chuilu Liu v. Holder, 575 F.3d 193,

20   194, 196 (2d Cir. 2009); Diallo v. INS, 232 F.3d 279, 287

21   (2d Cir. 2000).

22           In assessing whether an applicant meets her burden of

23   proof, the agency “may weigh the credible testimony along
                                              2
 1   with other evidence of record.”          8 U.S.C. §

 2   1158(b)(1)(B)(ii).          The agency may require

 3   corroboration despite otherwise credible testimony, and

 4   deny an application based on the failure to provide such

 5   corroboration, if the corroborating evidence is reasonably

 6   available.   Id.; Yan Juan Chen v. Holder, 658 F.3d 246,

 7   251-52 (2d Cir. 2011).       Before denying a claim solely

 8   based on an applicant’s failure to provide corroborating

 9   evidence, the IJ generally must, either in his decision or

10   otherwise on the record, (1) identify the missing

11   evidence, and explain why it was reasonably available, and

12   (2) provide an opportunity for the applicant to explain

13   the omission and assess any explanation given.              Chuilu

14   Liu, 575 F.3d at 197-99.          “No court shall reverse a

15   determination made by a trier of fact with respect to the

16   availability of corroborating evidence . . . unless the

17   court finds . . . that a reasonable trier of fact is

18   compelled to conclude that such corroborating evidence is

19   unavailable.”   8 U.S.C. § 1252(b)(4).

20       The   record     does   not    compel    a   conclusion     that   the

21   evidence the IJ sought—medical records of Weng’s alleged

22   third   pregnancy,    documentation         of   the   family   planning

23   policy pertaining to her locality in China, and records of
                                         3
 1   her    husband’s       arrest     and    detention—was            not      reasonably

 2   available.        Id.     Weng conceded at the hearing that she

 3   made    no     effort    to   obtain         any    of    the     above-mentioned

 4   evidence, and she did not state that the evidence was

 5   unavailable.          Chuilu Liu, 575 F.3d at 197-98; see also 8

 6   U.S.C. § 1252(b)(4); Jian Hui Shao v. Mukasey, 546 F.3d

 7   138, 142, 148, 156-57, 165, 170 (2d Cir. 2008) (noting that

 8   applicants must demonstrate that their violation of the

 9   family planning policy would be punished in their local

10   area in a way that would give rise to an objectively

11   reasonably fear of persecution).

12          The agency also reasonably afforded diminished weight

13   to the evidence Weng produced.                    “We generally defer to the

14   agency’s       evaluation       of     the       weight   to    be    afforded     an

15   applicant’s documentary evidence.”                        Y.C. v. Holder, 741

16   F.3d 324, 332 (2d Cir. 2013).                    The letter from her village

17   committee       in    China      was    handwritten,           unsigned      by   any

18   official,       and     unauthenticated             (either       officially       or

19   through a letter from Weng’s mother to explain how and

20   from    whom    the     letter    was    obtained),         and      her   husband’s

21   letter was unsworn, came from an interested witness not

22   available       for     cross-examination,            and      was    written     for

23   purposes of the asylum application.                       See Matter of H-L-H-
                                                  4
 1   & Z-Y- Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (agency

 2   can give little weight to document drafted by interested

 3   witness not subject to cross examination), rev’d on other

 4   grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir.

 5   2012).

 6        Weng’s failure to corroborate her alleged violation

 7   of China’s coercive family planning policy is dispositive

 8   of asylum, withholding of removal, and CAT relief because

 9   her claims to all three forms of relief were based on the

10   same facts: a forced abortion and the accompanying fear of

11   sterilization.    See Lecaj v. Holder, 616 F.3d 111, 119-20

12   (2d Cir. 2010).

13       For the foregoing reasons, the petition for review is

14   DENIED.   As we have completed our review, the pending motion

15   for a stay of removal in this petition is DISMISSED as moot.

16                               FOR THE COURT:
17                               Catherine O’Hagan Wolfe, Clerk
18
19




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