13-2146
Zhu v. Holder
BIA
Cheng, I.J.
A087 759 194
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 2nd day of July, two thousand fourteen.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
DAN ZHU,
Petitioner,
v. 13-2146
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Richard Tarzia, Belle Mead, New
Jersey.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; John S. Hogan, Senior
Litigation Counsel; Michael C.
Heyse, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Dan Zhu, a native and citizen of China, seeks review of
a May 15, 2013, decision of the BIA affirming the October 4,
2011, decision of an Immigration Judge (“IJ”) denying
asylum, withholding of removal, and Convention Against
Torture (“CAT”) relief. In re Dan Zhu, No. A087 759 194
(B.I.A. May 15, 2013), aff’g No. A087 759 194 (Immig. Ct.
N.Y. City Oct. 4, 2011). We assume the parties’ familiarity
with the underlying facts and procedural history of this
case.
We have reviewed both the BIA’s and IJ’s decisions.
See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.
2005). The 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).
Zhu failed to exhaust any challenge to the IJ’s finding
that her asylum application was untimely or to the IJ’s
consideration of her ability to leave China with her own
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passport in making an adverse credibility finding.
Accordingly, we decline to reach those issues. See Lin
Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107, 119-20,
124-25 (2d Cir. 2007). We address only the denial of
withholding of removal and CAT relief.
Zhu challenges the IJ’s adverse credibility
determination, arguing that the IJ erred in concluding that
the similarities between her father’s letter and those of
her friends reflected negatively on her credibility. The
agency properly considered these similarities in making an
adverse credibility finding. A comparison of the letters
reveals that identical wording was used to describe Zhu’s
arrest. As we explained in Mei Chai Ye v. U.S. DOJ, 489 F.3d
517(2d Cir. 2007), “our case law . . . has firmly embraced
the commonsensical notion that striking similarities between
affidavits are an indication that the statements are
canned.” Id. at 524 (citations and quotation marks omitted).
Thus, the IJ reasonably rested an adverse credibility
determination on those similarities as well as discrepancies
in petitioner’s testimony, including an inadequate
explanation of why she applied for a passport even though
she had no plans to leave the country, and inconsistent
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testimony regarding her religious practice in the United
States. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d
Cir. 2008); 8 U.S.C. § 1158(b)(1)(B)(iii).
As Zhu’s claims for withholding of removal and relief
under CAT share the same factual predicate as her asylum
claim, we uphold the IJ’s denial of all of Zhu’s claims for
relief. Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006)(explaining that denial is proper where withholding and
CAT claims rest on the “very fact, or set of facts, that the
IJ found not to be credible” in relation to an asylum
claim). Accordingly, we do not reach the agency’s
alternative holdings on those claims, except to note that by
failing to raise the issue in her brief, Zhu waived any
challenge to the agency’s finding that the alleged harm did
not rise to the level of persecution.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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