08-4868-ag
Zhu v. Holder
BIA
Balasquide, IJ
A 099 669 124
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 22 nd day of March, two thousand ten.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
AI JUAN ZHU,
Petitioner,
v. 08-4868-ag
NAC
ERIC H. HOLDER, JR., * U.S. ATTORNEY
GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Theodore N. Cox, New York, New York.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
FOR RESPONDENT: Michael F. Hertz, Acting Assistant
Attorney General, Mary Jane Candaux,
Assistant Director, Kathleen Kelly
Volkert, Trial Attorney, Office of
Immigration Litigation, Civil
Division, 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.
Petitioner Ai Juan Zhu, a native and citizen of China,
seeks review of a September 10, 2008 order of the BIA
affirming the November 16, 2006 decision of Immigration
Judge (“IJ”) Javier Balasquide denying her application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Ai Juan Zhu, No.
A 099 669 124 (B.I.A. Sept. 10, 2008), aff’g No. A 099 669
124 (Immig. Ct. N.Y. City Nov. 16, 2006). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
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8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90,
95 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99,
110 (2d Cir. 2008).
Substantial evidence supports the IJ’s adverse
credibility determination, and, accordingly, his finding
that Zhu failed to demonstrate that she suffered past
persecution. Zhu does not directly challenge the IJ’s
finding of discrepancies in Zhu’s testimony and written
submissions regarding: (1) the date family planning
officials notified her to report for a gynecological
examination; (2) the date that an IUD was forcibly inserted;
and (3) the date her home was demolished. Thus, Zhu has
waived any challenge to those findings, Yueqing Zhang v.
Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005), and
they stand as valid bases for the IJ’s adverse credibility
determination, see Shunfu Li v. Mukasey, 529 F.3d 141, 146-
147 (2d Cir. 2008).
Further, although Zhu does challenge the IJ’s finding
that she was evasive in answering questions, that finding
was reasonable. See 8 U.S.C. § 1252(b)(4)(B); Corovic v.
Mukasey, 519 F.3d at 95. For example, while Zhu testified
that her son was killed when family planning officials
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demolished her home, she claimed that she could not remember
whether she complained to the authorities about his death.
To the extent Zhu offered an explanation for this
discrepancy, a reasonable factfinder would not be compelled
to credit it. See Ming Shi Xue v. BIA, 439 F.3d 111, 125
(2d Cir. 2006); Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005).
We need not reach the IJ’s remaining credibility
findings, because, even if they were in error, remand would
be futile given the unchallenged and non-erroneous findings
discussed above. See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 339 (2d Cir. 2006). Ultimately, substantial
evidence supported the IJ’s adverse credibility
determination and, accordingly, his conclusion that Zhu did
not suffer past persecution. See 8 U.S.C. § 1252(b)(4)(B);
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
Absent past persecution, applicants may establish
eligibility for asylum by showing that they subjectively
fear persecution on account of an enumerated ground and that
their fear is objectively reasonable. See Ramsameachire v.
Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). In this case,
the IJ’s determination that Zhu failed to demonstrate a
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well-founded fear of persecution on account of the expected
birth of her second child was supported by substantial
evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 174
(2d Cir. 2008) (upholding BIA’s case-by-case framework for
analyzing such claims).
Accordingly, the agency did not err in denying Zhu’s
application for asylum and withholding of removal. See Paul
v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Zhu does not
challenge the agency’s denial of her application for CAT
relief.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any pending motion
for a stay of 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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