Xin Dong-Lin v. Holder

09-1781-ag Dong-Lin v. Holder BIA Abrams, IJ A 094 924 328 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 12 th day of March, two thousand ten. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 JOSEPH M. McLAUGHLIN, 10 GERARD E. LYNCH, 11 Circuit Judges. 12 _______________________________________ 13 14 XIN DONG-LIN, 15 Petitioner, 16 17 v. 09-1781-ag 18 NAC 19 ERIC H. HOLDER, JR., U.S. ATTORNEY 20 GENERAL, 21 Respondent. 22 ______________________________________ 23 24 FOR PETITIONER: Gary J. Yerman, New York, New York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Leslie McKay, Assistant 28 Director; M. Jocelyn Lopez Wright, 29 Senior Litigation Counsel, Office of 30 Immigration Litigation, Washington 31 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 Xin Dong-Lin, a native and citizen of China, 6 seeks review of the April 15, 2009, order of the BIA 7 affirming the February 8, 2008, decision of Immigration 8 Judge (“IJ”) Steven R. Abrams denying his application for 9 asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”). In re Xin Dong-Lin, No. 11 A 094 924 328 (B.I.A. Apr. 15, 2009), aff’g No. A 094 924 12 328 (Immig. Ct. N.Y. City Feb. 8, 2008). We assume the 13 parties’ familiarity with the underlying facts and 14 procedural history in this case. 15 Under the circumstances of this case, we review both 16 the IJ’s and the BIA’s decisions. See Yan Chen v. Gonzales, 17 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards 18 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 Dong-Lin does not challenge the IJ’s finding that, 22 although he alleged that a photograph of him practicing 2 1 Falun Gong was taken at a rally in Flushing, NY on June 11, 2 2007, he submitted the photograph at a hearing one week 3 earlier, on June 5, 2007. Therefore, that finding stands as 4 a valid basis for the IJ’s adverse credibility 5 determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 6 (2d Cir. 2008). 7 Furthermore, in his brief to the BIA, Dong-Lin did not 8 challenge: (1) the IJ’s reliance on the record of his 9 credible fear interview, the frequency of his Falun Gong 10 practice, and his proficiency in Falun Gong in assessing his 11 credibility; (2) the IJ’s findings regarding his motivation 12 for practicing Falun Gong in the United States; and (3) the 13 IJ’s finding that he failed to sufficiently corroborate his 14 claim. Because the agency never had the opportunity to 15 consider these specific arguments, we will not do so in the 16 first instance. See Theodoropoulos v. I.N.S., 358 F.3d 162, 17 171 (2d Cir. 2004); Lin Zhong v. U.S. Dep’t of Justice, 480 18 F.3d 104, 123, 124 n.24 (2d Cir. 2007). 19 Dong-Lin argues that the IJ erred in finding that his 20 testimony conflicted with that of his uncle regarding his 21 Falun Gong practice in the United States. To the extent 22 Dong-Lin argues that the inconsistencies “relate to very 3 1 minor details,” under the REAL ID Act, “an IJ may rely on 2 any inconsistency or omission in making an adverse 3 credibility determination as long as the ‘totality of the 4 circumstances’ establishes that the asylum applicant is not 5 credible.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d 6 Cir. 2008) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). 7 Furthermore, Dong-Lin challenges only the IJ’s finding that, 8 although his uncle testified that Dong-Lin practices only in 9 his bedroom, photographs showed him practicing in the living 10 room. However, the IJ also found that Dong-Lin’s testimony 11 that he practiced Falun Gong at a park in Flushing, NY, on 12 only two occasions, and did not otherwise practice outside 13 his home, contradicted his uncle’s testimony that he 14 practiced at a park in Brooklyn. Dong-Lin does not 15 challenge this finding in his brief. We further find, 16 contrary to Dong-Lin’s argument, that the IJ’s demeanor 17 finding was not erroneous. See Majidi v. Gonzales, 430 F.3d 18 77, 81 n.1 (2d Cir. 2005). 19 Ultimately, the IJ’s credibility determination was 20 supported by substantial evidence. See 8 U.S.C. 21 § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 167. Therefore, 22 the IJ did not err in denying his application for asylum and 4 1 withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 2 156 (2d Cir. 2006). 3 Dong-Lin has waived any challenge to the agency’s 4 denial of his claim for CAT relief by not sufficiently 5 arguing that issue in his brief. See Yueqing Zhang v. 6 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) 7 (finding that issues not sufficiently argued in the briefs 8 are considered waived and normally will not be addressed on 9 appeal). 10 For the foregoing reasons, the petition for review is 11 DENIED. As we have completed our review, any pending motion 12 for a stay of removal in this petition is DISMISSED as moot. 13 Any pending request for oral argument in this petition is 14 DENIED in accordance with Federal Rule of Appellate 15 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 16 17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 20 21 5