Cui He v. Lynch

13-2308
He v. Lynch
BIA
Hom, IJ
A089 130 539
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 15th day of December, two thousand fifteen.
PRESENT:
JOSÉ A. CABRANES,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
CUI HE,
Petitioner,
v. 13-2308
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: G. Victoria Calle, New York, New
York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Douglas E. Ginsburg,
Assistant Director; Nicole R.
Prairie, Trial Attorney, Civil
Division, 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.
Petitioner Cui He, a native and citizen of China, seeks
review of a May 21, 2013 decision of the BIA affirming an
November 22, 2011 decision of an Immigration Judge (“IJ”)
denying He’s application for asylum, withholding of removal
and relief under the Convention Against Torture (“CAT”). In
re Cui He, No. A089 130 539 (B.I.A. May 21, 2013), aff’g No.
A089 130 539 (Immig. Ct. N.Y. City Nov. 22, 2011). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have
considered both the IJ’s and the BIA’s opinions “for the
sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
(2d Cir. 2008). The applicable standards of review are
well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
The agency found that He failed to demonstrate past
persecution. He’s petition for review does not challenge
that finding; the single sentence in the argument summary of
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her brief is inadequate to present the claim to this Court.
So, to be eligible for relief, He needed to make an
independent showing that she would be subjected to harm upon
her return to China. 8 C.F.R. § 1208.13(b). She could do
so by demonstrating either that she would be singled out for
persecution or that there existed a pattern or practice of
persecution of those similarly situated to her, i.e.,
members of underground Christian churches. 8 C.F.R.
§ 1208.13(b)(2).
He’s brief to the BIA disavowed any claim that she
would be singled out. Instead, she claimed that the
background evidence (which she did not submit to the IJ)
established a pattern or practice of persecution. In her
petition for review, however, He has taken the opposite
tack, positing that her credible testimony demonstrated that
she will be singled out for persecution, and that she need
not prove a pattern or practice of persecution.
“Judicially-imposed doctrines of issue exhaustion . . .
will usually mean that issues not raised to the BIA will not
be examined by the reviewing court,” even absent an argument
from the government. Lin Zhong v. U.S. Dep’t of Justice,
480 F.3d 104, 123 (2d Cir. 2007). Given the record here, He
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failed to exhaust her claim that she will be singled out for
persecution, and so we do not consider it.
Although He does not argue that China has a pattern or
practice of persecuting Christians, she contends that the
agency abused its discretion in declining to consider the
background evidence she submitted on appeal to the BIA,
which would have supported a pattern or practice claim. The
BIA may take administrative notice of country condition
reports; but it is not obligated to do so. 8 C.F.R.
§ 1003.1(d)(3)(iv); Hoxhallari v. Gonzales, 468 F.3d 179,
186 n.5 (2d Cir. 2006) (per curiam) (recognizing the
permissive nature of the BIA’s authority to “exercise
independent discretion” in taking notice of commonly known
facts). Moreover, He fails to identify any particular
articles or reports that would support a pattern or practice
claim.
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 DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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