Pursuant to Federal Rule of Appellate Procedure 1

43(c)(2), Attorney General Eric. H. Holder, Jr., is

automatically substituted for former Attorney General

Michael B. Mukasey as respondent in this case.

08-4238-ag

Yang v. Holder

BIA

Hom, IJ

A079 319 291

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 8 day of February, two thousand ten. th

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 PIERRE N. LEVAL,

10 PETER W. HALL,

11 Circuit Judges. 

12 _______________________________________

13

14 JIN YUN YANG,

15 Petitioner, 

16

17 v. 08-4238-ag

18 NAC

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

1

22

23 _______________________________________

24

25

26

27
2

1 FOR PETITIONER: Durga Prasad Bhurtel, New York, New

2 York.

3

4 FOR RESPONDENT: Tony West, Assistant Attorney

5 General; Linda S. Wernery, Assistant

6 Director; Susan Bennett Green, Trial

7 Attorney, Office of Immigration

8 Litigation, United States Department

9 of Justice, Washington, D.C.

10

11 UPON DUE CONSIDERATION of this petition for review of a

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

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

14 is DENIED.

15 Jin Yun Yang, a native and citizen of China, seeks

16 review of a July 30, 2008 order of the BIA affirming the

17 October 6, 2006 decision of Immigration Judge (“IJ”) Sandy

18 K. Hom, which denied her application for asylum, withholding

19 of removal, and relief under the Convention Against Torture

20 (“CAT”). In re Jin Yun Yang, No. A079 319 291 (B.I.A. July

21 30, 2008), aff’g No. A079 319 291 (Immig. Ct. N.Y. City Oct.

22 6, 2006). We assume the parties’ familiarity with the

23 underlying facts and procedural history in this case.

24 We review the agency’s factual findings under the

25 substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);

26 see also Manzur v. DHS, 494 F.3d 281, 289 (2d Cir. 2007). 

27 We review de novo questions of law and the application of
3

1 law to undisputed fact. See Salimatou Bah v. Mukasey, 529

2 F.3d 99, 110 (2d Cir. 2008). 

3 Although an applicant’s credible testimony alone may

4 suffice to carry her burden of proof, an IJ may “require

5 that credible testimony . . . be corroborated in

6 circumstances in which one would expect corroborating

7 evidence to be available and presented in the immigration

8 hearing.” Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir.

9 2009) (internal citation omitted). Before denying a claim

10 based solely on an applicant’s failure to provide

11 corroborating evidence, the agency must “explain

12 specifically, either in its decision or otherwise in the

13 record: (1) why it is reasonable under the BIA’s standards

14 to expect such corroboration; and (2) why [the applicant’s]

15 proffered explanations for the lack of such corroboration

16 are insufficient.” Diallo v. INS, 232 F.3d 279, 290 (2d

17 Cir. 2000); see In re S-M-J-, 21 I. & N. Dec. 722 , 724 (BIA

18 1997). 

19 During her initial removal hearing in October 2001, the

20 IJ noted the absence from the record of any medical

21 documentation demonstrating that Yang was forcibly

22 sterilized, any evidence demonstrating that she was fined
4

1 for violating the Chinese family planning policy, and any

2 affidavits or testimony from her relatives, including her

3 husband who was in the United States. On remand, Yang was

4 given another opportunity to present such evidence, but

5 failed to do so.

6 Yang asserts that the agency erred in requiring her to

7 provide evidence that she was forcibly sterilized. However,

8 she herself testified that she had proof that she was

9 sterilized but that she could not find it. Further, Yang

10 testified that she paid a fine to family planning officials

11 but did not recall where she put the receipt. Finally, Yang

12 claimed that her husband could not testify because he was

13 working. As the BIA found, after five years, Yang “did not

14 provide documents that she mentioned in [her] testimony,”

15 and failed to provide the testimony of or an affidavit from

16 her husband. Contrary to Yang’s assertion that she

17 explained his absence, the BIA reasonably rejected Yang’s

18 assertion that her husband could not testify because he had

19 to work, because it did not excuse her failure to provide an

20 affidavit from him. See Diallo, 232 F.3d at 290; Majidi v.

21 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (finding that

22 the agency need not credit an applicant’s explanations

23 unless those explanations would compel a reasonable fact-
5

1 finder to do so). The BIA also noted that Yang did not

2 request a continuance to select a date when her husband

3 could testify. 

4 Ultimately, substantial evidence supports the agency’s

5 finding that Yang failed to present reasonably available

6 corroboration and thus failed to meet her burden of

7 establishing eligibility for asylum. See Diallo, 232 F.3d

8 at 290. Because Yang was unable to show the objective

9 likelihood of persecution needed to make out an asylum

10 claim, she was necessarily unable to meet the higher

11 standard required to succeed on a claim for withholding of

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

13 156 (2d Cir. 2006); Xue Hong Yang, 426 F.3d at 523. 

14 For the foregoing reasons, the petition for review is

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

16 removal that the Court previously granted in this petition

17 is VACATED, and any pending motion for a stay of removal in

18 this petition is DISMISSED as moot. Any pending request for

19 oral argument in this petition is DENIED in accordance with

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

21 Circuit Local Rule 34(b).

22 FOR THE COURT: 

23 Catherine O’Hagan Wolfe, Clerk

24

25

26