         08-3773-ag
         Wang v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A098 977 458
                           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 10 th day of August,           two thousand ten.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                RICHARD C. WESLEY,
 9                DEBRA ANN LIVINGSTON,
10                          Circuit Judges.
11       _______________________________________
12
13       GUI QIN WANG,
14                Petitioner,
15
16                        v.                                    08-3773-ag (L);
17                                                              09-1798-ag (Con)
18                                                              NAC
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       ______________________________________
24
25       FOR PETITIONER:               Gang Zhou, New York, New York.
26
27       FOR RESPONDENT:               Gregory G. Katsas, Assistant
28                                     Attorney General, Civil Division,
29                                     John S. Hogan, Senior Litigation
30                                     Counsel, Achiezer Guggenheim,
31                                     Attorney, David H. Wetmore,
32                                     Attorney, Office of Immigration
33                                     Litigation, Civil Division, United
34                                     States Department of Justice,
35                                     Washington, D.C.
1         UPON DUE CONSIDERATION of these petitions for review of

2    two Board of Immigration Appeals (“BIA”) decisions, it is

3    hereby ORDERED, ADJUDGED, AND DECREED that the petitions for

4    review are DENIED.

5         Petitioner Gui Qin Wang, a native and citizen of the

6    People’s Republic of China, seeks review of: (1) a July 3,

7    2008 order of the BIA affirming the July 6, 2006 decision of

8    Immigration Judge (“IJ”) Barbara A. Nelson denying Wang’s

9    applications for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”); and (2) an

11   April 21, 2009 order of the BIA denying Wang’s motion to

12   reopen.   In re Gui Qin Wang, No. A098 977 458 (B.I.A. July

13   3, 2008), aff’g No. A098 977 458 (Immig. Ct. N.Y. City July

14   6, 2006), In re Gui Qin Wang, No. A098 977 458 (B.I.A. Apr.

15   21, 2009).   We assume the parties’ familiarity with the

16   underlying facts and procedural history in this case.

17   I.   08-3773-ag (L)

18        Under the circumstances of this case, this Court

19   reviews the IJ’s decision.   See Mei Chai Ye v. U.S. Dep’t of

20   Justice, 489 F.3d 517, 523 (2d Cir. 2007).    The applicable

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

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

23   513 (2d Cir. 2009).

                                   2
1        An applicant’s credible testimony alone may suffice to

2    carry her burden of proof in establishing eligibility for

3    asylum.   8 U.S.C. § 1158(b)(1)(B)(ii).   In this case,

4    however, the IJ denied that relief after finding that Wang

5    failed to provide reasonably available corroborative

6    evidence in the form of letters from her husband and son

7    concerning material elements of her claim.    Wang argues that

8    the IJ erred in relying on the absence of this evidence

9    because neither her husband nor son had personal knowledge

10   of her forced abortions and she was never given an

11   opportunity to explain why she did not produce supporting

12   statements from them.   Under the REAL ID Act amendments,

13   which apply to Wang’s application for relief, Matter of

14   S-B-, 24 I. & N. Dec. 42, 45 (B.I.A. 2006), “[w]here the

15   trier of fact determines that the applicant should provide

16   evidence that corroborates otherwise credible testimony,

17   such evidence must be provided unless the applicant does not

18   have the evidence and cannot reasonably obtain the

19   evidence.”   See 8 U.S.C. § 1158(b)(1)(B)(ii).   Under those

20   provisions, “an IJ, weighing the evidence to determine if

21   the alien has met his burden, may rely on the absence of

22   corroborating evidence adduced by an otherwise credible

23   applicant unless such evidence cannot be reasonably

                                   3
1    obtained.”   Chuilu Liu v. Holder, 575 F.3d 193, 197 (2d Cir.

2    2009).

3        Here, the record does not compel a conclusion that the

4    evidence the IJ sought was not reasonably available.     The

5    record belies Wang’s assertion that she was not given the

6    opportunity to explain why she did not provide such

7    corroboration.   Indeed, when asked why she did not, she

8    responded that she did not think to do so.     That response

9    would not compel a reasonable factfinder to conclude that

10   the evidence was not reasonably available.     See Majidi v.

11   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).     We are also

12   unpersuaded by Wang’s argument that the evidence the IJ

13   sought was immaterial where: (1) Wang testified that her

14   husband knew about her abortions and attempted to obtain

15   compensation for her hospital bills; and (2) Wang testified

16   that her son found her after she fainted following a

17   confrontation with village cadres.

18       The IJ also reasonably found that several inadequacies

19   in Wang’s supporting documents – which included a letter

20   from a co-worker and a letter from a doctor – adversely

21   impacted her ability to meet her burden of proof. 1   See Xiao


              1
              Wang’s argument that the BIA violated her due
       process rights by relying on unidentified inconsistencies

                                   4
     1   Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

     2   2006) (holding that the weight afforded to the applicant’s

     3   evidence in immigration proceedings lies largely within the

     4   discretion of the IJ).

     5       Because substantial evidence supports the IJ’s finding

     6   that Wang failed to sufficiently corroborate her claim, the

     7   IJ properly denied her application for asylum.    See 8 U.S.C.

8        § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 197-98.

9        Because Wang was unable to show the objective likelihood of

10       persecution needed to make out an asylum claim, she was

11       necessarily unable to meet the higher standard required to

12       succeed on a claim for withholding of removal.    See Paul v.

13       Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); see also

14       8 U.S.C. § 1231(b)(3)(c).    Wang has failed to sufficiently

15       challenge the agency’s denial of CAT relief and does not

16       raise before this Court any claim based on her illegal

17       departure from China.    Thus, we deem any such arguments

18       waived.   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541

19       n.1, 545 n.7 (2d Cir. 2005).




           and reversing the IJ’s credibility determination lacks
           merit. The BIA did not reverse the IJ’s finding that
           Wang’s testimony was credible, but rather affirmed the
           IJ’s finding that the inconsistencies impacted upon
           Wang’s ability to meet her burden.

                                        5
1    II.   09-1798-ag (Con)

2          We review the BIA’s denial of a motion to reopen for

3    abuse of discretion.     See Kaur v. BIA, 413 F.3d 232, 233 (2d

4    Cir. 2005) (per curiam). “A motion to reopen proceedings

5    shall not be granted unless it appears to the Board that

6    evidence sought to be offered is material and was not

7    available and could not have been discovered or presented at

8    the former hearing.”     8 C.F.R. § 1003.2(c)(1) (2005).

9          Here, the BIA did not err in finding that the evidence

10   Wang provided in support of her ineffective assistance of

11   counsel claim was available before she filed her appeal.

12   See Matter of Guevara, 20 I&N Dec. 238 (BIA 1991); see

13   Norani v. Gonzales, 451 F.3d 292, 294 & n.3 (2d Cir. 2006).

14   Wang asserts that she was not aware of her previous

15   counsel’s ineffective assistance until after she filed her

16   initial appeal to the BIA.     However, she stated in her

17   motion to reopen before the BIA that she discovered that her

18   previous attorney failed to submit her friend’s affidavit

19   when she received her file from him before filing a timely

20   appeal.   Accordingly, both she and her new attorney were

21   aware of the alleged ineffective assistance before filing

22   her appeal to the BIA, and the BIA reasonably determined

23   that her evidence was not previously unavailable.     8 C.F.R.

24   § 1003.2(c)(1); Norani, 451 F.3d at 294.

                                     6
1        Thus, because the BIA did not err in finding that Wang

2    failed to provide evidence that was previously unavailable,

3    it did not abuse its discretion in denying her motion to

4    reopen.   See INS v. Abudu, 485 U.S. 94, 104-05 (1988);

5    Norani, 451 F.3d at 294; 8 C.F.R. § 1003.2(c)(1).

6        For the foregoing reasons, the petitions for review are

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

8    for a stay of removal is DISMISSED as moot.

9

10                               FOR THE COURT:
11                               Catherine O’Hagan Wolfe, Clerk
12
13
14




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