15-4088 Jin v. Sessions BIA Hom, IJ A205 222 247 

### 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 TO 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **5 th**  **day of May, two thousand seventeen.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **RICHARD C. WESLEY,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **MINGCHUN JIN,** 13 Petitioner **,** 14 15 **v. 15-4088** 16 **NAC** 17 **JEFFERSON B. SESSIONS III, UNITED STATES** 18 **ATTORNEY GENERAL,*** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Carly B. Wiskoff, New York, N.Y. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 25 Assistant Attorney General; M. 26

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jefferson B. Sessions III is automatically substituted for former Attorney General Loretta E. Lynch as the Respondent in this case.2 Jocelyn Lopez Wright, Senior 1 Litigation Counsel; Anthony J. 2 Messuri, Trial Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, D.C. 6 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review is 10

DENIED. 11 Petitioner Mingchun Jin, a native and citizen of the 12 People’s Republic of China, seeks review of a November 23, 2015 13 decision of the BIA affirming a July 30, 2014 decision of an 14 Immigration Judge (“IJ”) denying Jin’s application for asylum, 15 withholding of removal, and relief under the Convention Against 16 Torture (“CAT”). In re Mingchun Jin, No. A205 222 247 (B.I.A. 17 Nov. 23, 2015), aff’g No. A205 222 247 (Immig. Ct. N.Y. City 18 July 30, 2014). We assume the parties’ familiarity with the 19 underlying facts and procedural history in this case. 20 Under the circumstances of this case, we have reviewed the 21 IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S. 22 Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). Because 23 the BIA did not affirm or rely on the adverse credibility 243 determination we, as did the BIA, assume credibility. See Yan 1 Chen v. Gonzales , 417 F.3d 268, 271-72 (2d Cir. 2005). 2 Accordingly, the dispositive issue is whether the agency erred 3 in its alternative conclusion that Jin failed to meet her burden 4 of proof. The applicable standards of review are well 5 established. 8 U.S.C. § 1252(b)(4); Chuilu Liu v. Holder , 575 6 F.3d 193, 194, 196 (2d Cir. 2009); Diallo v. INS , 232 F.3d 279, 7 287 (2d Cir. 2000). 8 In assessing whether an applicant meets her burden of 9 proof, the agency “may weigh the credible testimony along with 10 other evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(ii). 11 The agency may require corroboration despite otherwise 12 credible testimony, and deny an application based on the 13 failure to provide such corroboration, if the corroborating 14 evidence is reasonably available. Id .; Yan Juan Chen v. 15 Holder , 658 F.3d 246, 251-52 (2d Cir. 2011). Before denying 16 a claim solely because of an applicant’s failure to provide 17 corroborating evidence, the IJ generally must, either in his 18 decision or otherwise on the record, (1) identify the missing 19 evidence and explain why it was reasonably available, and 20 (2) provide an opportunity for the applicant to explain the 214 omission and assess any explanation given. Chuilu Liu , 575 1 F.3d at 197-99. “No court shall reverse a determination made 2 by a trier of fact with respect to the availability of 3 corroborating evidence . . . unless the court 4 finds . . . that a reasonable trier of fact is compelled to 5 conclude that such corroborating evidence is unavailable.” 8 6 U.S.C. § 1252(b)(4). 7 The IJ sought corroboration in the form of an affidavit 8 from Jin’s husband who resided in China and had knowledge of 9 Jin’s abortion and access to documentation of the family 10 planning policy specific to Jin’s h ome region as it relates 11 to persons of Korean descent. The record does not compel a 12 conclusion that the evidence was not reasonably available. 13 Id. Jin had over two years to obtain the evidence, and her 14 speculation that her husband’s letter was “intercepted by the 15 government” due to its sensitive subject matter was not 16 compelling given that she testified to receiving other 17 documents from her husband. Chuilu Liu , 575 F.3d at 197-98; 18 see also 8 U.S.C. § 1252(b)(4). And Jin admitted she made no 19 effort to provide documentation of the family planning policy 20 in her region of China. See Jian Hui Shao v. Mukasey , 546 F.3d 215 138, 142, 148, 156-57, 165, 170 (2d Cir. 2008) (noting that 1 applicants must demonstrate that their violation of the family 2 planning policy would be punished in their local area in a way 3 that would give rise to an objectively reasonably fear of 4 persecution). 5 The agency also reasonably afforded limited weight to the 6 evidence Jin produced. “We generally defer to the agency’s 7 evaluation of the weight to be afforded an applicant’s 8 documentary evidence.” Y.C. v. Holder , 741 F.3d 324, 332 (2d 9 Cir. 2013). The records of the abortion and IUD insertion 10 were labeled as consent forms for the procedures and made no 11 mention of force or coercion. See Jian Hui Shao , 546 F.3d at 12 165, 172. 13 Jin’s failure to corroborate her alleged violation of 14 China’s coercive family planning po licy is dispositive of 15 asylum, withholding of removal, and CAT relief because all 16 three forms of relief were based on the alleged forced abortion 17 and IUD insertion and the accompanying fear of sterilization. 18 See Lecaj v. Holder , 616 F.3d 111, 119-20 (2d Cir. 2010). 19 For the foregoing reasons, the petition for review is 20 DENIED. As we have completed our rev iew, any stay of removal 216 that the Court previously granted in this petition is VACATED, 1 and any pending motion for a stay of removal in this petition 2 is DISMISSED as moot. Any pending request for oral argument 3 in this petition is DENIED in accordance with Federal Rule of 4 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 5 34.1(b). 6

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