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 AP PEALS FOR THE SECOND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY O RDER 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 26 272 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 1 1 UPON DUE CONSIDERATION of this petition for review of a 1 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 3 ORDERED, ADJUDGED, AND DECREED, that the petition for review 1 4 is DENIED. 1 5 Jin Yun Yang, a native and citizen of China, seeks 1 6 review of a July 30, 2008 order of the BIA affirming the 1 7 October 6, 2006 decision of Immigration Judge (“IJ”) Sandy 1 8 K. Hom, which denied her application for asylum, withholding 1 9 of removal, and relief under the Convention Against Torture 2 0 (“CAT”). In re Jin Yun Yang , No. A079 319 291 (B.I.A. July 2 1 30, 2008), aff’gNo. A079 319 291 (Immig. Ct. N.Y. City Oct. 2 2 6, 2006). We assume the parties’ familiarity with the 2 3 underlying facts and procedural history in this case. 2 4 We review the agency’s factual findings under the 2 5 substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. DHS, 494 F.3d 281, 289 (2d Cir. 2007). 26 2 7 We review de novoquestions of law and the application of3 1 law to undisputed fact. See Salimatou Bah v. Mukasey , 529 F.3d 99, 110 (2d Cir. 2008). 2 Althoughan applicant’s credible testimony alone may 3 4 suffice to carry her burden of proof, an IJ may “require that credible testimony . . . be corroborated in 5 circumstances in which one would expect corroborating 6 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 1 0 based solely on an applicant’s failure to provide 1 1 corroborating evidence, the agency must “explain 1 2 specifically, either in its decision or otherwise in the 1 3 record: (1) why it is reasonable under the BIA’s standards 1 4 to expect such corroboration; and (2) why [the applicant’s] 1 5 proffered explanations for the lack of such corroboration 1 6 are insufficient.” Diallo v. INS , 232 F.3d 279, 290 (2d 1 7 Cir. 2000); see In re S-M-J- , 21 I. & N. Dec. 722 , 724 (BIA 1 8 1997). 1 9 During her initial removal hearing in October 2001, the 2 0 IJ noted the absence from the record of any medical 2 1 documentation demonstrating that Yang was forcibly 2 2 sterilized, any evidence demonstrating that she was fined4 1 for violating the Chinese family planning policy, and any 2 affidavits or testimony from her relatives, including her husband who was in the United States 3 . 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 1 0 testified that she paid a fine to family planning officials 1 1 but did not recall where she put the receipt. Finally, Yang 1 2 claimed that her husband could not testify because he was 1 3 working. As the BIA found, after five years, Yang “did not 1 4 provide documents that she mentioned in [her] testimony,” 1 5 and failed to provide the testimony of or an affidavit from 1 6 her husband. Contrary to Yang’s assertion that she 1 7 explained his absence, the BIA reasonably rejected Yang’s 1 8 assertion that her husband could not testify because he had 1 9 to work, because it did not excuse her failure to provide an 2 0 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 2 2 the agency need not credit an applicant’s explanations 2 3 unless those explanations would compel a reasonable fact-5

finder to do so). 1 The BIA also noted that Yang did not 2 request a continuance to select a date when her husband could testify. 3 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 establishing eligibility for asylum. 7 See Diallo , 232 F.3d at 290 . 8 Because Yang was unable to show the objective 9 likelihood of persecution needed to make out an asylum 1 0 claim, she was necessarily unable to meet the higher 1 1 standard required to succeed on a claim for withholding of removal or CAT relief. 12 See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang , 426 F.3d at 523. 13 For the foregoing reasons, the petition for review is 14 1 5 DENIED. As we have completed our review, any stay of 1 6 removal that the Court previously granted in this petition 1 7 is VACATED, and any pending motion for a stay of removal in 1 8 this petition is DISMISSED as moot. Any pending request for 1 9 oral argument in this petition is DENIED in accordance with 2 0 Federal Rule of Appellate Procedure 34(a)(2), and Second 2 1 Circuit Local Rule 34(b). 2 2 FOR THE COURT: 2 3 Catherine O’Hagan Wolfe, Clerk 24 25 26