09-3647-ag
Hu v. Holder
BIA
Nelson, IJ
A099 938 846
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 26th day of October, two thousand ten.
PRESENT:
REENA RAGGI,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
A HU,
Petitioner,
v. 09-3647-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Henry Zhang, Zhang & Associates,
P.C., New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Terri J. Scadron, Assistant
Director; Heller R. Smith, Trial
Attorney, Office of Immigration
Litigation, Civil Division, U.S.
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, in part, and DISMISSED, in part.
Petitioner A Hu, a native and citizen of China, seeks
review of a July 31, 2009 order of the BIA affirming the
April 1, 2008 decision of Immigration Judge (“IJ”) Barbara
A. Nelson denying petitioner’s application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re A Hu, No. A 099 938 846
(B.I.A. July 31, 2009), aff’g No. A 099 938 846 (Immig. Ct.
N.Y. City Apr. 1, 2008). We assume the parties’ familiarity
with the underlying facts and procedural history of the
case.
Under the circumstances of this case, we review the
decisions of both the IJ and the BIA. See Jigme Wangchuck
v. Dept’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Salimatou Bah v.
Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
On appeal, Hu challenges the agency’s finding that his
testimony was not credible. In making its finding, the
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agency observed that: (1) Hu’s testimony regarding the dates
and length of his and his father’s detention were
contradicted by a letter submitted by his father; (2) Hu
offered vague testimony regarding the nature of the stomach
illness that led him to begin practicing Falun Gong; and
(3) Hu failed to provide sufficient corroboration for his
claim that he practiced Falun Gong.
Hu submits that these reasons do not constitute
substantial evidence that he was not credible. He asserts
that his father confused the dates and length of his
detention because he was trying to recall “something that
happened a long time ago,” Pet’r’s Br. at 9, and that Hu
offered only vague testimony regarding his stomach illness
because he was unable to obtain a medical report from his
doctor in China.
Even if these explanations were plausible, a reasonable
factfinder would not have been compelled to credit them.
See 8 U.S.C. § 1252(b)(4)(B); Majidi v. Gonzales, 430 F.3d
77, 80-81 (2d Cir. 2005). In evaluating credibility, an IJ
may rely on “all relevant factors” including “the
consistency of [the applicant’s] statements with other
evidence of record . . . without regard to whether an
inconsistency . . . goes to the heart of the applicant’s
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claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Further, contrary
to Hu’s assertion, the IJ properly relied on his failure to
submit corroborating evidence sufficient to rehabilitate the
testimony the IJ had called into question. See Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
Accordingly, we conclude that substantial evidence
supports the agency’s adverse credibility determination and,
therefore, that Hu did not carry his burden of demonstrating
eligibility for asylum. Even if Hu has sufficiently raised
his withholding of removal claim on appeal, cf. Yueqing
Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.
2005), we would conclude that such relief was also
reasonably denied because that claim was based on the same
testimony found not credible, see Paul v. Gonzales, 444 F.3d
148, 156 (2d Cir. 2006).
To the extent Hu challenges the agency’s denial of CAT
relief, we lack jurisdiction to review that argument because
Hu did not exhaust it before the BIA. See 8 U.S.C.
§ 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.
2006).
For the foregoing reasons, the petition for review is
DENIED, in part, and DISMISSED, in part. As we have
completed our review, any pending motion for a stay of
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removal in this petition is DISMISSED as moot. Any pending
request for oral argument in this petition is DENIED in
accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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