11-3143
Tang v. Holder
BIA
Hom, IJ
A095 660 278
A095 660 279
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 28th day of August, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
LI XIANG TANG, HAO CHEN,
Petitioners,
v. 11-3143
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Bruno Joseph Bembi, Hempstead, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Luis E. Perez, Senior Litigation
Counsel; Kathryn L. Moore, Trial
Attorney, Office of Immigration
Litigation, 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.
Petitioners Li Xiang Tang and Hao Chen, natives and
citizens of the People’s Republic of China, seek review of a
July 12, 2011, decision of the BIA affirming the June 2, 2009,
decision of an Immigration Judge (“IJ”) denying Tang’s
application for asylum, withholding of removal and relief
under the Convention Against Torture (“CAT”). In re Li Xiang
Tang, Hao Chen, Nos. A095 660 278/279 (B.I.A. July, 12, 2011),
aff’g No. A095 660 278/279 (Immig. Ct. N.Y. City June 2,
2009). We assume the parties’ familiarity with the underlying
facts and procedural history of the case.
Under the circumstances of this case, we have reviewed
both the BIA’s and the IJ’s opinions. See Yun-Zui Guan v.
Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam). The
applicable 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).
Tang argues that, on remand from our prior decision in
these proceedings, see Li Xiang Tang v. Gonzales, 215 F. App’x
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34 (2d Cir. 2007) (unpublished decision), the agency
impermissibly addressed her credibility, because this issue
was outside the scope of this Court’s remand order. This
argument is without merit. Our order neither deemed Tang
credible nor foreclosed further review of her credibility.
See Guan v. INS, 453 F.3d 129, 136 (2d Cir. 2006) (“[W]hen we
find fault with an adverse credibility finding, we will not
substitute our own judgment for the agency's, but ordinarily
will remand to the agency for additional explanation or
investigation.”).
Substantial evidence supports the agency’s conclusion
that Tang did not testify credibly regarding her forced
abortion. The agency’s adverse credibility determination was
supported by two specific inconsistencies in Tang’s account of
her alleged persecution. First, Tang testified inconsistently
with respect to where she was when Chinese government family
planning officials allegedly apprehended her in order to
administer a forced abortion in June 2000. Compare Certified
Administrative Record at 471 (Tang testifying that she was at
her mother’s home when family planning officials apprehended
her) with id. at 478-79 (Tang testifying that she was at her
own home when she was apprehended). Second, Tang’s testimony
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regarding how family planning officials learned of her
unlawful pregnancy was inconsistent with her written
statement. Compare id. at 471, 479 (Tang testifying that
someone reported her pregnancy to the officials) with id. at
644 (Tang’s statement that family planning officials came
looking for her when she failed to report to an appointment to
have an IUD inserted). When confronted with this
inconsistency on cross-examination, Tang failed to offer any
explanation. See id. at 479-80.
Tang also argues that, because the IJ gave the testimony
of her husband, Yong Chai Chen (“Chen”), little weight, the IJ
erred in relying on his testimony to find Tang not credible.
This argument, however, misapprehends the IJ’s discussion of
Chen’s testimony. The IJ did not rely on inconsistencies
between Chen’s testimony and Tang’s testimony and evidence to
find Tang not credible. Rather, because the IJ determined
that Chen’s testimony was not credible, the IJ declined to
rely on it to support Tang’s claims. See id. at 58-60.
Finally, Tang argues that the IJ erred in finding that
she had provided insufficient evidence to support her claim
that she feared the Chinese government would forcibly
sterilize her if she returned to China because she now has two
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children. However, Tang did not raise this issue before the
BIA. In addition to the statutory requirement that
petitioners exhaust the categories of relief they seek, 8
U.S.C. § 1252(d)(1), petitioners must also raise to the BIA
the specific issues they later raise in this Court. See
Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004). While not
jurisdictional, this judicially imposed exhaustion requirement
is mandatory. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
104, 119-20 (2d Cir. 2007). Because the BIA did not have the
benefit of argument challenging the IJ’s conclusion on this
issue, see id. at 107 n.1, 122 (reaffirming that this Court
“may consider only those issues that formed the basis for [the
BIA’s] decision”), we decline to consider this unexhausted
issue, see id. at 107 n.1(b) (“Even if the government does not
point out a failure to exhaust an issue before the agency,
such a failure to exhaust is sufficient ground for the
reviewing court to refuse to consider that issue.”).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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