         09-3101-ag
         Zheng v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A090 347 270
                            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 15th day of October, two thousand ten.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                GERARD E. LYNCH,
 9                DENNY CHIN,
10                   Circuit Judges.
11       _______________________________________
12
13       QI XIN ZHENG,
14                Petitioner,
15
16                         v.                                   09-3101-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Henry Zhang, Zhang & Associates, New
24                                     York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Ernesto H. Molina, Jr.,
28                                     Senior Litigation Counsel; Gladys M.
29                                     Steffens Guzmán, Trial Attorney,
30                                     Office of Immigration Litigation,
31                                     Civil Division, United States
32                                     Department of Justice, Washington,
33                                     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 is

 4   DENIED.

 5        Petitioner Qi Xin Zheng, a native and citizen of the

 6   People’s Republic of China, seeks review of a July 7, 2009, order

 7   of the BIA affirming the October 15, 2007, decision of

 8   Immigration Judge (“IJ”) Steven R. Abrams denying Zheng’s

 9   application for asylum, withholding of removal, and relief under

10   the Convention Against Torture (“CAT”).    In re Qi Xin Zheng, No.

11   A090 347 270 (B.I.A. July 7, 2009), aff’g No. A090 347 270

12   (Immig. Ct. N.Y. City Oct. 15, 2007).   We assume the parties’

13   familiarity with the underlying facts and procedural history in

14   this case.

15        Under the circumstances of this case, we   review the    IJ’s

16   decision as modified by the BIA.    See Xue Hong Yang v. U.S. Dep’t

17   of Justice, 426 F.3d 520, 522 (2d Cir. 2005).   We review factual

18   findings, “including those underlying the immigration court’s

19   determination that an alien has failed to satisfy his burden of

20   proof,” under the substantial evidence standard.    Chuilu Liu v.

21   Holder, 575 F.3d 193, 196 (2d Cir. 2009) (internal quotation

22   marks omitted).   We treat them as “‘conclusive unless any

23   reasonable adjudicator would be compelled to conclude to the


                                     2
 1   contrary.’” Chuilu Liu v. Holder, 575 F.3d at 196, quoting 8

 2   U.S.C. § 1252(b)(4)(B).

 3        In finding that Zheng failed to meet his burden of proof,

 4   the IJ found that: (1) he provided no medical records or other

 5   documentation to corroborate his claim that he began practicing

 6   Falun Gong because of a stomach ailment; (2) he provided no

 7   evidence that he was detained for practicing Falun Gong or that

 8   he was injured while in detention; and (3) he produced no

 9   witnesses (or other reliable evidence) to corroborate his claim

10   that he practices Falun Gong in the United States, despite the

11   fact that he claims to practice it daily at home, where he lives

12   with an uncle, and occasionally at a public park.

13        Although Zheng argues that the IJ’s corroboration finding is

14   tethered to the adverse credibility determination, which the BIA

15   declined to address, given the IJ’s numerous and specific

16   findings that Zheng failed to provide corroborating evidence

17   despite the fact that he could have reasonably obtained such

18   evidence, the BIA’s determination that Zheng failed to meet his

19   burden of proof is supported by substantial evidence.   See id. at

20   197 (“[A]n IJ, weighing the evidence to determine if the alien

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

22   evidence adduced by an otherwise credible applicant unless such

23   evidence cannot be reasonably obtained.”); see also 8 U.S.C. §

24   1158(b)(1)(B)(ii) (“Where the trier of fact determines that the


                                    3
 1   applicant should provide evidence that corroborates otherwise

 2   credible testimony, such evidence must be provided unless the

 3   applicant does not have the evidence and cannot reasonably obtain

 4   the evidence.”); 8 U.S.C. § 1252(b)(4) (“No court shall reverse a

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

 6   availability of corroborating evidence . . . unless the court

 7   finds . . . that a reasonable trier of fact is compelled to

 8   conclude that such corroborating evidence is unavailable.”).

 9   Moreover, although Zheng argues that he reasonably explained why

10   he failed to present the documentary evidence the IJ requested, a

11   reasonable factfinder would not have been compelled to credit his

12   explanations.     See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

13   Cir. 2005).

14        Because Zheng was unable to meet his burden for asylum, he

15   necessarily failed to meet the higher burden required for

16   withholding of removal.     See Paul v. Gonzales, 444 F.3d 148, 156

17   (2d Cir. 2006).    Although Zheng sets forth the standard for CAT

18   relief in his brief before this Court, he does not challenge the

19   basis of the IJ’s denial of CAT relief – that he did not testify

20   that he would be subject to anything amounting to torture – or

21   otherwise argue that any evidence established a likelihood of

22   torture upon return to China.    Accordingly, any challenge to the

23   agency’s denial of CAT relief has been waived.     See Yueqing Zhang

24   v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).


                                       4
1         For the foregoing reasons, the petition for review is

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

3    that the Court previously granted in this petition is VACATED,

4    and any pending motion for a stay of removal in this petition is

5    DISMISSED as moot.

 6                                  FOR THE COURT:
 7                                  Catherine O’Hagan Wolfe, Clerk
 8
 9
10




                                     5
