Zhao v. Holder ( 2014 )

12-4718
Zhao v. Holder
BIA
Weisel, I.J.
A087 638 597
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
CORRECTED 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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 7th day of March, two thousand fourteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PIERRE N. LEVAL,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _____________________________________
12
13 SHU XIU ZHAO,
14 Petitioner,
15
16 v. 12-4718
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas D. Barra, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; James A. Hunolt, Senior
27 Litigation Counsel; Jesse D. Lorenz,
28 Trial Attorney, Civil Division,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Shu Xiu Zhao, a native and citizen of the People’s
6 Republic of China, seeks review of an October 31, 2012 order
7 of the BIA affirming the February 9, 2011 decision of an
8 Immigration Judge (“IJ”), which denied her application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). See In re Shu Xiu Zhao,
11 No. A087 638 597 (B.I.A. Oct. 31, 2012), aff’g No. A087 638
12 597 (Immig. Ct. N.Y. City Feb. 9, 2011). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history of 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 8
19 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
20 F.3d 510, 513 (2d Cir. 2009).
21 Substantial evidence supports the agency’s finding that
22 Zhao’s testimony was not credible. Zhao’s asylum
23 application omitted any reference to a March 2009 Falun Gong
2
1 parade and a later phone call from a friend of her husband’s
2 criticizing her activities, but she testified about both.
3 Zhao’s testimony omitted particulars of an April 2009 event
4 highlighted in her asylum application. Zhao’s omissions
5 provide substantial support for the agency’s adverse
6 credibility determination. See Xiu Xia Lin v. Mukasey, 534
7 F.3d 162, 167 (2d Cir. 2008). The agency was not compelled
8 to accept Zhao’s explanation that her attorney erroneously
9 omitted the incidents when preparing her application.
10 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).
11 Zhao argues that she referenced the March 2009 parade
12 in her asylum application, by submitting pictures of the
13 event, and that she in fact testified about the April 2009
14 incident. However, she raised neither of these claims
15 before the BIA, and we therefore will not consider them.
16 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-22 (2d
17 Cir. 2007). In any event, neither argument has merit: (1)
18 Zhao was required to highlight the March 2009 incident in
19 her application, as she had the burden of establishing
20 eligibility for asylum, see Gashi v. Holder, 702 F.3d 130,
21 135 (2d Cir. 2012); and (2) Zhao testified about the April
22 2009 incident briefly, if at all, and did not mention that
3
1 onlookers at the April 2009 parade called Falun Gong
2 supporters “traitors” and a “cult.” Even if the agency
3 erred in either respect, those omissions support the adverse
4 credibility finding, and render a remand futile. See Xiao
5 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338-40 (2d
6 Cir. 2008).
7 We decline to consider Zhao’s argument that the agency
8 failed to determine whether she had a well-founded fear of
9 persecution. The finding that she did not present a
10 credible claim was a sufficient basis for the agency’s
11 decision. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
12 (“As a general rule courts and agencies are not required to
13 make findings on issues the decision of which is unnecessary
14 to the results they reach.”).
15 Because Zhao’s withholding of removal and CAT claims
16 depend on the same factual predicate as the asylum claim,
17 the agency’s adverse credibility determination is also
18 dispositive of those forms of relief. See Paul v. Gonzales,
19 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S.
20 Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
4
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
5