12-3142
Zhu v. Holder
BIA
Zagzoug, IJ
A099 488 506
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 1st day of November, two thousand thirteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 ZAI CHENG ZHU,
14 Petitioner,
15
16 v. 12-3142
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Oleh R. Tustaniwsky, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Richard M. Evans,
28 Assistant Director; Christina Bechak
29 Parascandola, Trial Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Petitioner Zai Cheng Zhu, a native and citizen of
6 China, seeks review of a July 20, 2012, decision of the BIA
7 affirming a January 18, 2011, decision of Immigration Judge
8 (“IJ”) Randa Zagzoug, denying Zhu’s application for asylum,
9 withholding of removal and relief under the Convention
10 Against Torture (“CAT”). In re Zai Cheng Zhu, No. A099 488
11 506 (B.I.A. July 20, 2012), aff’g No. A099 488 506 (Immig.
12 Ct. N.Y. City July 20, 2012). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we review the
16 decisions of both the IJ and the BIA. See Ming Xia Chen v.
17 BIA, 435 F.3d 141, 144 (2d Cir. 2006). The applicable
18 standards of review are well-established. See 8 U.S.C.
19 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
20 (2d Cir. 2009).
21 Because, in his brief, Zhu explicitly abandons any
22 challenge to the denial of asylum and CAT relief, the only
23 issue before the Court is the agency's denial of withholding
2
1 of removal. Zhu argues that he is entitled to withholding
2 of removal based on his “other resistance” to China’s family
3 planning policy. See Shi Liang Lin v. U.S. Dep’t of
4 Justice, 494 F.3d 296, 309 (2d Cir. 2007). However, because
5 the Government correctly asserts that Zhu failed to exhaust
6 this argument before the BIA, we will not consider it. See
7 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 118–20 (2d
8 Cir.2007). Notably, Zhu does not address his failure to
9 exhaust this issue or suggest any reason that the Court
10 should review his arguments, despite having not raised them
11 before the BIA.
12 Zhu's other asserted grounds for withholding of removal
13 – his opposition to corruption in China and his political
14 activities in the United States – were raised in his appeal
15 to the BIA. The Government correctly argues, however, that,
16 before the BIA, Zhu contended only that he had met his
17 burden of proof, but did not challenge the IJ's findings
18 that his testimony was not credible and that he had failed
19 to provide corroborating evidence. Therefore, we will not
20 consider Zhu’s challenges to these findings. See id.
21 As the determinations that Zhu was not credible and had
22 failed to provide corroborating evidence were dispositive of
3
1 his claim for withholding of removal, see Chuilu Liu v.
2 Holder, 575 F.3d 193, 195 n.5 (2009) (noting that “a failure
3 to corroborate can suffice, without more, to support a
4 finding that an alien has not met his burden of proof”);
5 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (finding
6 that “where a withholding claim is based on the very fact,
7 or set of facts, that the IJ found not to be credible . . .
8 an adverse credibility ruling will . . . preclude the
9 withholding claim”), and we “must decline to consider” these
10 unexhausted issues, Lin Zhong, 480 F.3d at 107 n.1, the
11 petition for review is denied. See Balachova v. Mukasey,
12 547 F.3d 374, 380 (2d Cir. 2008) (granting Government's
13 motion to dismiss petition for review where the petitioner
14 did not exhaust challenge to adverse credibility
15 determination that was dispositive of all claims).
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of
18 removal that the Court previously granted in this petition
19 is VACATED, and any pending motion for a stay of removal in
20 this petition is DISMISSED as moot. Any pending request for
21 oral argument in this petition is DENIED in accordance with
4
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5