Filed: Jul. 13, 2010
Latest Update: Feb. 21, 2020
Summary: 09-4790-ag Hu v. Holder BIA Brennan, IJ A098 560 587 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 NO
Summary: 09-4790-ag Hu v. Holder BIA Brennan, IJ A098 560 587 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 NOT..
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09-4790-ag
Hu v. Holder
BIA
Brennan, IJ
A098 560 587
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 13 th day of July, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN,
8 GUIDO CALABRESI,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 ______________________________________
12
13 DONGFANG HU, ALSO KNOWN AS
14 DONG FANG HU,
15 Petitioner,
16
17 v. 09-4790-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Ramesh K. Shrestha, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General, Civil Division; Richard M.
29 Evans, Assistant Director; Christina
30 Bechak Parascandola, Trial Attorney,
31 Office of Immigration Litigation,
32 U.S. Department of Justice,
33 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 DENIED.
5 Petitioner, Dongfang Hu, a native and citizen of the
6 People’s Republic of China, seeks review of an October 22,
7 2009, order of the BIA affirming the January 8, 2008,
8 decision of Immigration Judge (“IJ”) Noel A. Brennan denying
9 petitioner’s application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Dongfang Hu, No. A 098 560 587 (B.I.A. Oct. 22, 2009),
12 aff’g No. A 098 560 587 (Immig. Ct. N.Y. City Jan. 8, 2008).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history of the case.
15 Under the circumstances of this case, we review both
16 the IJ’s and the BIA’s opinions. See Zaman v. Mukasey, 514
17 F.3d 233, 237 (2d Cir. 2008). The applicable standards of
18 review are well-established. Corovic v. Mukasey,
519 F.3d
19 90, 95 (2d Cir. 2008); Salimatou Bah v. Mukasey,
529 F.3d
20 99, 110 (2d Cir. 2008).
21 Hu challenges both the IJ’s partial adverse credibility
22 determination and the IJ’s finding that she was not
23 persecuted based on political opinion. In evaluating Hu’s
2
1 credibility regarding her testimony that she was forced to
2 hide from Chinese authorities, the IJ found that: (1) her
3 demeanor was not forthright and direct; (2) she implausibly
4 could not remember how frequently the police questioned her
5 relatives about her whereabouts; and (3) she failed to
6 adequately corroborate her testimony. Hu does not challenge
7 these findings, which stand as valid bases for the IJ’s
8 adverse credibility determination. See Shunfu Li v.
9 Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).
10 The IJ additionally declined to credit Hu’s testimony
11 because: (1) she implausibly could not identify who she
12 stayed with when she was in hiding; and (2) her testimony
13 that police visited her grandmother’s house looking for her
14 was contradicted by her affidavit and her father’s letter,
15 neither of which mentioned the visit. Hu’s assertion that
16 the IJ erred by failing to elicit greater detail regarding
17 these implausibilities is unavailing, as Hu bears the burden
18 of proof to establish that she is eligible for asylum,
19 see 8 C.F.R. § 1208.13(a). We note also that, contrary to
20 Hu’s assertion, the IJ did not err in relying on the
21 omission in her affidavit as a basis for her adverse
22 credibility determination. See Xiu Xia Lin v. Mukasey, 534
23 F.3d 162, 166 n.3 (2d Cir. 2008). Thus, the IJ’s adverse
3
1 credibility determination is supported by substantial
2 evidence.
3 Because the IJ found that Hu credibly testified
4 regarding the incidents involving her refusal to sell her
5 store, the IJ’s adverse credibility determination is not
6 dispositive of Hu’s claim. In order to demonstrate
7 eligibility for asylum and withholding of removal, the
8 applicant must establish that the persecution suffered or
9 feared bears a nexus to his or her race, religion,
10 nationality, membership in a particular social group, or
11 political opinion. 8 U.S.C. § 1101(a)(42). Specifically,
12 we have found that opposition to government corruption may
13 contain a political dimension that constitutes a protected
14 ground under the Immigration and Nationality Act. See
15 Yueqing Zhang v. Gonzales, 426 F.3d 540, 547-48 (2d Cir.
16 2005) (noting that “opposition to endemic corruption or
17 extortion, no less than opposition to other government
18 practices or policies, may have a political dimension when
19 it transcends mere self-protection and represents a
20 challenge to the legitimacy or authority of the ruling
21 regime.”).
22 Although Hu asserts that Lin destroyed her property on
23 account of her opposition to police corruption, the IJ
4
1 properly noted that Hu failed to proffer any evidence that
2 the harm she endured was on account of a protected ground.
3 Indeed, her own testimony discusses only Lin’s frustration
4 at Hu’s refusal to sell her store to him and is devoid of
5 any indication that Lin damaged her store because of any
6 political opinion, actual or imputed. As the IJ correctly
7 noted, Hu provided “no evidence . . . that this is not some
8 criminal conduct or extortion being engaged in by some
9 private businessman.” We therefore find no error in the
10 IJ’s determination that Hu failed to demonstrate the
11 requisite nexus to establish her eligibility for asylum.
12 See id.(noting that an important question for determining
13 the nature of an applicant’s opposition is “whether the
14 persecutor was attempting to suppress a challenge to the
15 governing institution, as opposed to a challenge to
16 isolated, aberrational acts of greed or malfeasance.”).
17 Inasmuch as Hu’s claim for withholding of removal
18 shares the same factual predicate as her claim for asylum,
19 the agency’s finding is fatal to that claim as well. See
20 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
21 Moreover, although Hu sets forth the standard for CAT relief
22 in her brief before this Court, she does not challenge the
23 basis of the IJ’s denial of CAT relief - that she did not
5
1 testify that she would be subject to anything amounting to
2 torture - or otherwise argue that any evidence established a
3 likelihood of torture upon return to China. Accordingly,
4 any challenge to the agency’s denial of CAT relief should be
5 deemed waived. See Yueqing Zheng, 426 F.3d at 545 n.7.
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any pending motion
8 for a stay of removal in this petition is DISMISSED as moot.
9 Any pending request for oral argument in this petition is
10 DENIED in accordance with Federal Rule of Appellate
11 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
6
