    13-4420
    Piao v. Lynch
                                                                                       BIA
                                                                                 Laforest, IJ
                                                                               A088 042 533

                         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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    23rd day of September, two thousand sixteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             SUSAN L. CARNEY,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.
    _____________________________________

    HONGZHE PIAO,
             Petitioner,

                    v.                                               13-4420
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Guang Jun Gao, Flushing, New York.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Julie M.
                                         Iversen, Senior Litigation Counsel;
                                         Annette M. Wietecha, Office of
                                         Immigration Litigation, United
                                         States Department of Justice,
                                         Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

    Petitioner Hongzhe Piao, a native and citizen of the

People’s Republic of China, seeks review of an October 29, 2013,

decision of the BIA affirming a September 9, 2011, decision of

an Immigration Judge (“IJ”) denying Piao’s application for

asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”).    In re Hongzhe Piao, No. A088 042 533

(B.I.A. Oct. 29, 2013), aff’g No. A088 042 533 (Immig. Ct. N.Y.

City Sept. 9, 2011).     We assume the parties’ familiarity with

the underlying facts and procedural history in this case.

    We previously denied Piao’s petition for review with

respect to his claim that he would be persecuted based on his

pro-democracy activities in the United States.      Accordingly,

we address only Piao’s claim that he was arrested and detained

in China for harboring North Korean refugees.   As to that claim,

we have reviewed both the IJ’s and the BIA’s opinions “for the

sake of completeness.”    Wangchuck v. DHS, 448 F.3d 524, 528 (2d

Cir. 2006).    The applicable standards of review are well

established.   See 8 U.S.C. § 1252(b)(4); Yanqin Weng v. Holder,


                                 2
562 F.3d 510, 513–14 (2d Cir. 2009).          Because the IJ did not

make an explicit credibility finding, we assume that Piao

testified credibly.    See Mei Fun Wong v. Holder, 633 F.3d 64,

68 (2d Cir. 2011).

    Piao asserted that he and his sister jointly opened a hotel

that provided assistance to North Korean refugees, and that,

as a result, he was arrested, detained for fifteen days, fined,

and his business license confiscated.         Piao submitted a letter

from his other sister (not the sister with whom he claims to

have opened the hotel), which stated that another relative told

her about her brother’s arrest and detention in a telephone

conversation.    He also submitted country conditions evidence

showing that the Chinese government arrests and detains people

who assist North Korean refugees, but the IJ did not address

this evidence.

    “While consistent, detailed, and credible testimony may be

sufficient to carry the alien’s burden, evidence corroborating

his story, or an explanation for its absence, may be required

where it would reasonably be expected.”       Diallo v. INS, 232 F.3d

279, 285 (2d Cir. 2000); 8 U.S.C. § 1158(b)(1)(B)(ii).         Here,

although   the   IJ   did   not   make   an     express   credibility

determination, she concluded that Piao engaged in a “pattern

of attempts to deceive the United States Government,” A.R. 57,

                                  3
including making false representations in his initial visa

application and in his application for an employment visa.        In

light of this finding, the agency reasonably required Piao to

corroborate his claims. See Yan Juan Chen v. Holder, 658 F.3d

246, 252 (2d Cir. 2011).

     The only corroborating evidence that Piao submitted was the

letter from his sister. 1     The agency reasonably gave little

weight to this letter, as it was unsworn, was submitted by an

interested witness who was not subject to cross-examination,

and was prepared solely to support Piao’s asylum claim.         In re

H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214–15 (BIA 2010), rev'd

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

Cir. 2012); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471

F.3d 315, 342 (2d Cir. 2006) (holding that weight afforded to

evidence lies largely within agency discretion).       Accordingly,

the record does not compel the conclusion that Piao adequately

corroborated his claim of past persecution.

     Our case law establishes that, when denying a claim because

of an applicant’s failure to provide corroborating evidence,

the IJ must explain what evidence the applicant should have

submitted   and   establish   that   the   evidence   is   reasonably

1
  Piao also submitted two letters from his wife, neither of which
mentioned Piao’s assistance to North Korean refugees or his arrest
and detention in China.
                                 4
available.   See Chuilu Liu v. Holder, 575 F.3d 193, 197-98 (2d

Cir. 2009); Diallo, 232 F.3d at 290.     The IJ does not appear

to have done so in this case.

    However, a petitioner must exhaust an issue by raising it

to the BIA before seeking judicial review. See Foster v. INS,

376 F.3d 75, 77 (2d Cir. 2004) (per curiam) (“[W]e require

‘[p]etitioner to raise issues to the BIA in order to preserve

them for judicial review.” (quoting Cervantes-Ascencio v. INS,

326 F.3d 83, 87 (2d Cir. 2003)).    Although this requirement is

not jurisdictional, it is mandatory.      See Lin Zhong v. U.S.

Dep’t of Justice, 480 F.3d 104, 119–20 (2d Cir. 2007).         In

addition, we normally do not consider arguments that are not

properly raised in the briefs on appeal.    See Norton v. Sam’s

Club, 145 F.3d 114, 117–18 (2d Cir. 1998) (“Issues not

sufficiently argued in the briefs are considered waived and

normally will not be addressed on appeal.”).   Here, Piao failed

to raise the IJ’s failure to identify the missing evidence

either to the BIA or in his brief on appeal.    Accordingly, we

are constrained by our precedents from reaching this issue.

    Piao’s attorney’s failure to preserve this potentially

meritorious issue is suggestive of ineffective assistance of

counsel.   We require such a claim to be presented in the first

instance to the BIA, and we therefore do not reach it here.   See

                                5
Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d Cir. 1994); Yang

v. Gonzales, 478 F.3d 133, 142 (2d Cir. 2007).                  Piao can seek

relief    by    filing        a    motion   to    reopen    in     the   BIA.

Arango-Aradondo, 13 F.3d at 614.                Although the deadline for

filing a such a motion has passed, the time limit may be

equitably      tolled    to       accommodate    claims    of    ineffective

assistance of counsel so long as the movant “exercised due

diligence in pursuing the case during the period for which

tolling is sought.”       Chen v. Gonzales, 437 F.3d 267, 269 (2d

Cir. 2006).     Accordingly, we hereby grant a sixty-day stay of

deportation for Piao to file a motion to reopen in the BIA.               If

Piao files such a motion within that deadline, the stay will

remain in effect until all BIA proceedings are complete.                  See

Arango-Aradondo, 13 F.3d at 615.

    Finally, Piao’s brief on appeal contains a section heading

that refers to his claims for withholding of removal and relief

under the Convention Against Torture (“CAT”).                   However, the

ensuing section contains only a boilerplate summary of the

applicable legal standards and a single sentence asserting:

“In the present case, Petitioner shall be found to be a credible

witness and he had sufficiently corroborated his claim.”                 Pet.

Br. 19.   This conclusory assertion is insufficient to present

this issue for our review.            See Norton, 145 F.3d at 117.        In

                                       6
any event, because Piao failed to establish his eligibility for

asylum, he necessarily failed to meet the higher standards for

withholding of removal or relief under the CAT.     See Lecaj v.

Holder, 616 F.3d 111, 119–20 (2d Cir. 2010).

    For the foregoing reasons, the petition for review is

DENIED.   We grant a sixty-day stay of deportation so that Piao

may file a motion to reopen asserting his claim for ineffective

assistance of counsel.   If he meets this deadline, the stay will

remain in effect until all BIA proceedings are complete.

                             FOR THE COURT:
                             Catherine O=Hagan Wolfe, Clerk




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