12-4470

Piao v. Holder

BIA

Vomacka, IJ

A087 550 644

A087 970 636

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.

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 3rd day of April, two thousand fourteen.

PRESENT:

ROBERT A. KATZMANN,

Chief Judge,

DENNY CHIN,

SUSAN L. CARNEY,

Circuit Judges.

_____________________________________

MEI HUA PIAO, JIN FENG BAI,

Petitioners, 

 v. 12-4470

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

______________________________________

FOR PETITIONER: Jiali Pan, Law Offices of Jiali Pan

and Associates, Flushing, New York.

FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

General; Francis W. Fraser, Senior

Litigation Counsel; Enitan O.

Otunla, Trial Attorney, 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.

Petitioners Mei Hua Piao and Jin Feng Bai, who are

married natives and citizens of China, seek review of an

October 17, 2012, order of the BIA, affirming the October

27, 2010, decision of an Immigration Judge (“IJ”), which

denied them asylum, withholding of removal, and relief under

the Convention Against Torture (“CAT”). In re Mei Hua Piao,

Jin Feng Bai, Nos. A087 550 644/970 636 (B.I.A. Oct. 17,

2012), aff’g Nos. A087 550 644/970 636 (Immig. Ct. New York

City Oct. 27, 2010). We assume the parties’ familiarity

with the underlying facts and procedural history in this

case. 

Under the circumstances of this case, we review the

IJ’s decision as modified by the BIA. See Xue Hong Yang v.

U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 

The applicable standards of review are well established. 

See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.

Holder, 562 F.3d 510, 513 (2d Cir. 2009).

For applications such as Petitioners’, which are

governed by the REAL ID Act, “[t]he testimony of the

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applicant may be sufficient to sustain the applicant’s

burden without corroboration, but only if the applicant

satisfies the trier of fact that the applicant’s testimony

is credible, is persuasive, and refers to specific facts

sufficient to demonstrate that the applicant is a refugee.” 

See 8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis added). “Where

the trier of fact determines that the applicant should

provide evidence that corroborates otherwise credible

testimony, such evidence must be provided unless the

applicant does not have the evidence and cannot reasonably

obtain the evidence.” Yan Juan Chen v. Holder, 658 F.3d

246, 252 (2d Cir. 2011) (quoting 8 U.S.C. 

§ 1158(b)(1)(B)(ii)). “No court shall reverse a

determination made by a trier of fact with respect to the

availability of corroborating evidence . . . [unless] a

reasonable trier of fact is compelled to conclude that such

corroborating evidence is unavailable.” 8 U.S.C. 

§ 1254(b)(4).

Here, the agency reasonably found that Petitioners

failed to meet their burden due to a lack of reasonably

available corroborating evidence. See Yan Juan Chen, 658

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F.3d at 252.1 Petitioners also fail to specifically

challenge the agency’s permissible rejection of Piao’s

explanations—that she had unsuccessfully asked her mother

for a statement and did not think to ask her father,

although he could have provided one from South Korea. See 8

U.S.C. § 1254(b)(4); cf. Majidi v. Gonzales, 430 F.3d 77,

80-81 (2d Cir. 2005) (stating that agency need not accept an

applicant’s explanation unless a reasonable fact-finder

would be compelled to do so).

In addition, as the government correctly notes,

Petitioners failed to exhaust their argument that Piao was

prevented from adequately explaining the absence of her

medical records because the IJ failed to sufficiently

develop the record. See Lin Zhong v. U.S. Dep’t of Justice,

480 F.3d 104, 124 (2d Cir. 2007) (recognizing that issue

exhaustion is a mandatory, although not jurisdictional,

requirement). Petitioners do not explain what new facts

would have been revealed by further development of the

record. In any case, Petitioners have not shown that the

1 To the extent that petitioners claim their counsel

was ineffective for failing to advise them that

corroborating evidence was necessary, we decline to

address that claim because they did not exhaust it before

the BIA. See Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d

Cir. 1994).

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agency erred in finding they failed to present reasonably

available corroborating evidence in support of their claims. 

See Yan Juan Chen, 658 F.3d at 252; 8 U.S.C. § 1254(b)(4). 

 We have considered petitioners’ remaining arguments and

find they lack merit. For the foregoing reasons, the

petition for review is DENIED. As we have completed our

review, the pending motion for a stay of removal in this

petition is DENIED as moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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