09-3647-ag
   Hu v. Holder
                                                                                  BIA
                                                                             Nelson, IJ
                                                                          A099 938 846
                    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
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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 26th day of October, two thousand ten.

   PRESENT:
            REENA RAGGI,
            PETER W. HALL,
            GERARD E. LYNCH,
                Circuit Judges.
   _______________________________________

   A HU,
                  Petitioner,
                  v.                                      09-3647-ag
                                                          NAC
   ERIC H. HOLDER, JR., UNITED STATES
   ATTORNEY GENERAL,
            Respondent.
   ______________________________________
   FOR PETITIONER:               Henry Zhang, Zhang & Associates,
                                 P.C., New York, New York.

   FOR RESPONDENT:               Tony West, Assistant Attorney
                                 General; Terri J. Scadron, Assistant
                                 Director; Heller R. Smith, Trial
                                 Attorney, Office of Immigration
                                 Litigation, Civil Division, U.S.
                                 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, in part, and DISMISSED, in part.

    Petitioner A Hu, a native and citizen of China, seeks

review of a July 31, 2009 order of the BIA affirming the

April 1, 2008 decision of Immigration Judge (“IJ”) Barbara

A. Nelson denying petitioner’s application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”).   In re A Hu, No. A 099 938 846

(B.I.A. July 31, 2009), aff’g No. A 099 938 846 (Immig. Ct.

N.Y. City Apr. 1, 2008).   We assume the parties’ familiarity

with the underlying facts and procedural history of the

case.

    Under the circumstances of this case, we review the

decisions of both the IJ and the BIA.   See Jigme Wangchuck

v. Dept’t of Homeland Sec., 

, 528 (2d Cir.

2006).   The applicable standards of review are well

established.   See 8 U.S.C. § 1252(b)(4)(B); Salimatou Bah v.

Mukasey, 

, 110 (2d Cir. 2008).

    On appeal, Hu challenges the agency’s finding that his

testimony was not credible.   In making its finding, the

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agency observed that: (1) Hu’s testimony regarding the dates

and length of his and his father’s detention were

contradicted by a letter submitted by his father; (2) Hu

offered vague testimony regarding the nature of the stomach

illness that led him to begin practicing Falun Gong; and

(3) Hu failed to provide sufficient corroboration for his

claim that he practiced Falun Gong.

    Hu submits that these reasons do not constitute

substantial evidence that he was not credible.   He asserts

that his father confused the dates and length of his

detention because he was trying to recall “something that

happened a long time ago,” Pet’r’s Br. at 9, and that Hu

offered only vague testimony regarding his stomach illness

because he was unable to obtain a medical report from his

doctor in China.

    Even if these explanations were plausible, a reasonable

factfinder would not have been compelled to credit them.

See 8 U.S.C. § 1252(b)(4)(B); Majidi v. Gonzales, 

, 80-81 (2d Cir. 2005).   In evaluating credibility, an IJ

may rely on “all relevant factors” including “the

consistency of [the applicant’s] statements with other

evidence of record . . . without regard to whether an

inconsistency . . . goes to the heart of the applicant’s

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claim.”   8 U.S.C. § 1158(b)(1)(B)(iii).    Further, contrary

to Hu’s assertion, the IJ properly relied on his failure to

submit corroborating evidence sufficient to rehabilitate the

testimony the IJ had called into question.      See Biao Yang v.

Gonzales, 

, 273 (2d Cir. 2007).

    Accordingly, we conclude that substantial evidence

supports the agency’s adverse credibility determination and,

therefore, that Hu did not carry his burden of demonstrating

eligibility for asylum.    Even if Hu has sufficiently raised

his withholding of removal claim on appeal, cf. Yueqing

Zhang v. Gonzales, 

, 541 n.1, 545 n.7 (2d Cir.

2005), we would conclude that such relief was also

reasonably denied because that claim was based on the same

testimony found not credible, see Paul v. Gonzales, 

, 156 (2d Cir. 2006).

    To the extent Hu challenges the agency’s denial of CAT

relief, we lack jurisdiction to review that argument because

Hu did not exhaust it before the BIA.      See 8 U.S.C.

§ 1252(d)(1); Karaj v. Gonzales, 

, 119 (2d Cir.

2006).

    For the foregoing reasons, the petition for review is

DENIED, in part, and DISMISSED, in part.     As we have

completed our review, any pending motion for a stay of

                               4
removal in this petition is DISMISSED as moot.     Any pending

request for oral argument in this petition is DENIED in

accordance with Federal Rule of Appellate Procedure

34(a)(2), and Second Circuit Local Rule 34.1(b).

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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