11-2401-ag
Bai v. Holder
BIA
Hom, IJ
A099 084 013
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 11th day of October, two thousand twelve.
5
6 PRESENT:
7 ROBERT D. SACK,
8 ROBERT A. KATZMANN,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 CHUNLAN BAI,
14 Petitioner,
15
16 v. 11-2401-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lewis G. Hu, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Terri J. Scadron, Assistant
27 Director; Genevieve Holm, Trial
28 Attorney, Office of Immigration
29 Litigation, Civil Division, United
30 States Department of Justice,
31 Washington, 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 DISMISSED in part and DENIED in part.
5 Petitioner Chunlan Bai, a native and citizen of the
6 People’s Republic of China, seeks review of a May 19, 2011,
7 order of the BIA affirming the August 25, 2009, decision of
8 Immigration Judge (“IJ”) Sandy K. Hom denying Bai’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Chunlan
11 Bai, No. A099 084 013 (B.I.A. May 19, 2011), aff’g No. A099
12 084 013 (Immig. Ct. N.Y. City Aug. 25, 2009). 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 have reviewed
16 the IJ’s decision as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
20 510, 513 (2d Cir. 2009).
21 As a preliminary matter, under 8 U.S.C. § 1252(d)(1),
22 this Court “may review a final order of removal only if. . .
2
1 the alien has exhausted all administrative remedies
2 available to the alien as of right[.]” This jurisdictional
3 rule is absolute with respect to the requirement that on
4 appeal to the BIA the alien must raise each category of
5 relief subsequently raised in this Court. See Karaj v.
6 Gonzales, 462 F.3d 113, 119 (2d Cir. 2006). Here, Bai
7 failed to challenge the IJ’s denial of CAT relief in her
8 appeal to the BIA. Thus, as a statutory matter, we are
9 without jurisdiction to consider any challenge to the denial
10 of that relief, and the petition is dismissed to this
11 extent. 8 U.S.C. § 1252(d)(1).
12 As to withholding of removal, the agency reasonably
13 concluded that Bai was not credible based on inconsistencies
14 between her testimony and immigration applications she had
15 filed and her failure to provide evidence corroborating her
16 claims.1 See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing that
17 for asylum applications governed by the REAL ID Act, the
18 agency may, considering the totality of the circumstances,
19 base a credibility finding on an asylum applicant’s
20 “responsiveness” and inconsistencies in her statements
1
Bai does not challenge the agency’s denial of
asylum or its conclusion that she did not provide
corroborating evidence.
3
1 without regard to whether they go “to the heart of the
2 applicant’s claim”). Bai’s testimony that she was arrested
3 in 1997 and did not work in China after that arrest was
4 inconsistent with immigration forms she filed stating that
5 she was never arrested and that she worked in China as a
6 chef between 2000 and 2003.
7 The IJ reasonably rejected Bai’s argument that she did
8 not consider her 1997 arrest “a real arrest” because she
9 thought the Chinese authorities were acting illegitimately,
10 as this explanation was not consistent with her claim that
11 she was not responsible for the contents of the immigration
12 forms because they were prepared by an agent, not her. The
13 IJ was not compelled to accept either of these explanations.
14 See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
15 petitioner must do more than offer a plausible explanation
16 for his inconsistent statements to secure relief; he must
17 demonstrate that a reasonable fact-finder would be compelled
18 to credit his testimony.” (emphasis in original; quotation
19 marks and citations omitted)).
20 Together, the discrepancies between Bai’s testimony and
21 her immigration applications and her failure to provide
22 evidence corroborating her claims constitute substantial
4
1 evidence in support of the agency’s adverse credibility
2 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii).
3 Accordingly, the IJ did not err in concluding that Bai did
4 not establish her eligibility for withholding of removal.
5 See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.
6 2004).
7 For the foregoing reasons, the petition for review is
8 DISMISSED in part and DENIED in part. As we have completed
9 our review, any stay of removal that the Court previously
10 granted in this petition is VACATED, and any pending motion
11 for a stay of removal in this petition is DISMISSED as moot.
12 Any pending request for oral argument in this petition is
13 DENIED in accordance with Federal Rule of Appellate
14 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
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