Hua Geng Ye v. Board of Immigration Appeals

09-2874-ag Ye v. BIA BIA Morace, IJ A 099 616 312 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 17 th day of February, two thousand ten. 5 6 7 PRESENT: 8 ROBERT D. SACK, 9 RICHARD C. WESLEY, 10 PETER W. HALL, 11 Circuit Judges. 12 _______________________________________ 13 14 HUA GENG YE, 15 Petitioner, 16 17 v. 09-2874-ag 18 NAC 19 BOARD OF IMMIGRATION APPEALS, 20 Respondent. 21 ______________________________________ 22 23 FOR PETITIONER: Farah Loftus, Century City, 24 California. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General, Thomas B. Fatouros, Senior 28 Litigation Counsel, Karen Y. 29 Stewart, Attorney, Office of 1 Immigration Litigation, Civil 2 Division, United States Department 3 of Justice, Washington, D.C. 4 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED in part and DISMISSED in part. 9 Petitioner Hua Geng Ye, a native and citizen of China, 10 seeks review of the June 5, 2009, order of the BIA affirming 11 the September 10, 2007, decision of Immigration Judge (“IJ”) 12 Philip Morace pretermitting his application for asylum and 13 denying his application for withholding of removal and 14 relief under the Convention Against Torture (“CAT”). In re 15 Hua Geng Ye, No. A 099 616 312 (B.I.A. June 5, 2009), aff’g 16 No. A 099 616 312 (Immig. Ct. N.Y. City Sept. 10, 2007). We 17 assume the parties’ familiarity with the underlying facts 18 and procedural history of this case. 19 We review the decision of the IJ as supplemented by the 20 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 21 2005). The applicable standards of review are well- 22 established. See Yanqin Weng v. Holder, 562 F.3d 510, 513 23 (2d Cir. 2009). 2 1 We lack jurisdiction to review the IJ’s decision 2 insofar as he pretermitted as untimely Ye’s application for 3 asylum. See 8 U.S.C. § 1158(a)(3). While we retain 4 jurisdiction to review constitutional claims and “questions 5 of law,” 8 U.S.C. § 1252(a)(2)(D), Ye has raised neither. 6 We dismiss the petition for review to that extent. We 7 similarly dismiss the petition for review to the extent Ye 8 challenges the denial of his request for CAT relief because 9 he failed to exhaust that argument before the BIA. See 8 10 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 11 (2d Cir. 2006). 12 With respect to the agency’s denial of Ye’s application 13 for withholding of removal, we find no error in its adverse 14 credibility determination. In his brief, Ye does not 15 challenge the IJ’s findings that: (1) his non-responsive 16 demeanor negatively impacted his credibility; (2) the 17 absence of sufficient corroborative evidence negatively 18 impacted his credibility; and (3) there were “significant” 19 discrepancies both within his testimony and between his 20 testimony and the documentary evidence that he submitted 21 regarding the timing and his physical location when he 22 discovered that two of his fellow Falun Gong practitioners 3 1 had been arrested and detained. Because Ye does not 2 challenge those findings, they stand as valid bases for the 3 IJ’s adverse credibility determination. See Shunfu Li v. 4 Mukasey, 529 F.3d 141, 146-147 (2d Cir. 2008). Although Ye 5 challenges other of the IJ’s credibility findings, the 6 unchallenged findings alone provide substantial evidence for 7 his adverse credibility determination. See also Corovic, 8 519 F.3d at 95; Xiu Xia Lin, 534 F.3d at 167. We will 9 therefore not disturb the agency’s denial of Ye’s 10 application for withholding of removal. 11 For the foregoing reasons, the petition for review is 12 DENIED, in part, and DISMISSED, in part. Having completed 13 our review, we DISMISS the petitioner's pending motion for a 14 stay of removal as moot. 15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17 18 19 20 4