Filed: Feb. 18, 2010
Latest Update: Mar. 02, 2020
Summary: 08-1551-ag Ni v. Holder BIA Straus, IJ A29 799 044 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 nota
Summary: 08-1551-ag Ni v. Holder BIA Straus, IJ A29 799 044 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 notat..
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08-1551-ag
Ni v. Holder
BIA
Straus, IJ
A29 799 044
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 18 th day of February, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROSEMARY S. POOLER,
10 REENA RAGGI,
11 Circuit Judges.
12 _______________________________________
13
14 ZHOU HUA NI,
15 Petitioner,
16
17 v. 08-1551-ag
18 NAC
19
20 ERIC H. HOLDER JR., ATTORNEY GENERAL, *
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Kevin R. Murphy, Springfield,
25 Massachusetts.
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder Jr. is automatically substituted for
former Attorney General Michael B. Mukasey as the respondent in this
case.
1 FOR RESPONDENT: Gregory G. Katsas, Assistant
2 Attorney General, Civil Division,
3 John S. Hogan, Senior Litigation
4 Counsel, Achiezer Guggenheim, Trial
5 Attorney, Office of Immigration
6 Litigation, U.S. Department of
7 Justice, Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 decision of the Board of Immigration Appeals (“BIA”), it is
11 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
12 review is DENIED.
13 Zhou Hua Ni, a native and citizen of the People’s
14 Republic of China, seeks review of a March 12, 2008 order of
15 the BIA affirming the June 22, 2006 decision of Immigration
16 Judge (“IJ”) Michael W. Straus, denying his application for
17 asylum, withholding of removal, and CAT relief. In re Zhou
18 Hua Ni, No. A29 799 044 (B.I.A. Mar. 12, 2008), aff’g No.
19 A29 799 044 (Immig. Ct. Hartford, CT June 22, 2006). We
20 assume the parties’ familiarity with the underlying facts
21 and procedural history of the case.
22 When the BIA adopts the decision of the IJ and
23 supplements the IJ’s decision, this Court reviews the
24 decision of the IJ as supplemented by the BIA. See Yan Chen
25 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review
26 the agency’s factual findings, including adverse credibility
27 determinations, under the substantial evidence standard,
2
1 treating them as “conclusive unless any reasonable
2 adjudicator would be compelled to conclude to the contrary.”
3 8 U.S.C. § 1252(b)(4)(B); see, e.g., Corovic v. Mukasey, 519
4 F.3d 90, 95 (2d Cir. 2008). Questions of law and the
5 application of law to undisputed fact are reviewed de novo.
6 Salimatou Bah v. Mukasey,
529 F.3d 99, 104 (2d Cir. 2008).
7 As an initial matter, Ni has waived his CAT claim. See
8 Yueqing Zhang v. Gonzales,
426 F.3d 540, 541 n.1, 545 n.7
9 (2d Cir. 2005). Furthermore, we decline to review Ni’s
10 claim that he has a well-founded fear that he will be
11 forcibly sterilized in China because he failed to exhaust
12 that claim before the agency. See Lin Zhong v. U.S. Dep’t
13 of Justice,
480 F.3d 104, 119-20 (2d Cir. 2007). In
14 addition, we generally lack jurisdiction to review the
15 agency’s determination under 8 U.S.C. § 1158(a)(2)(B), that
16 an asylum application is untimely or the agency’s finding
17 that untimeliness has not been excused by changed or
18 extraordinary circumstances, 8 U.S.C. § 1158(a)(2)(D).
19 We do retain jurisdiction to review “questions of law,”
20 8 U.S.C. § 1252(a)(2)(D), and Ni’s argument that the
21 untimeliness of his application is excused by a change in
22 applicable asylum law presents such a question. See Ilyas
23 Khan v. Gonzales,
495 F.3d 31, 35 (2d Cir. 2007); Fakhry v.
3
1 Mukasey, 524 F.3d 1057, 1062 (9th Cir. 2008); 8 U.S.C.
2 § 1252(a)(2)(D); 8 C.F.R. § 1208.4(a)(4)(i)(B). Ni argues
3 that he was presumably ineligible for asylum until 1997 when
4 the BIA held in Matter of C-Y-Z-, 21 I.& N. Dec. 915 (B.I.A.
5 1997), that the forced sterilization of one spouse is an act
6 of persecution against the other. However, even if that
7 change in law would excuse the untimely filing, Ni waited
8 nearly a decade after that decision was issued to file his
9 application, hardly a reasonable length of time. See 8
10 C.F.R. § 1208.4(a)(4)(ii). Moreover, the BIA’s holding in
11 Matter of C-Y-Z- has since been overruled both by this Court
12 in Shi Liang Lin v. U.S. Dep’t of Justice,
494 F.3d 296 (2d
13 Cir. 2007), and by the Attorney General in Matter of J-S-,
14 24 I.& N. Dec. 520, 537 (B.I.A. 2008). Thus, Ni failed to
15 establish changed circumstances excusing the untimeliness of
16 his asylum application.
17 In addition, the agency’s adverse credibility
18 determination was supported by substantial evidence and
19 constituted a sufficient ground for denying Ni’s application
20 for withholding of removal. According to Ni, there are
21 plausible explanations for certain incongruities, but the
22 agency was under no obligation to accept the explanations.
23 See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005).
4
1 Moreover, the IJ did not err in finding that Ni’s
2 willingness to return to China undercut his testimony that
3 he had a well-founded fear of future persecution. See
4 Ramsameachire v. Ashcroft, 357 F.3d 169, 183 (2d Cir.
5 2004)(stating that an applicant must establish that he has a
6 subjective fear of future persecution in order to be
7 eligible for asylum); see also Ngarurih v. Ashcroft, 371
8 F.3d 182, 188-89 (4th Cir. 2004).
9 Ni’s asylum application does not discuss his attendance
10 at an underground church in China. Ni argues that this
11 omission “cannot be viewed as substantial and material,” but
12 Ni’s claims for relief all depended on his allegation that
13 he participated in an underground church and faced
14 persecution on that basis. Even if this omission were not
15 “substantial” and “material,” it would still suffice to
16 support the IJ’s adverse credibility determination under the
17 “totality of the circumstances.” 8 U.S.C.
18 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,
534 F.3d 162,
19 167 (2d Cir. 2008).
20
21 For the foregoing reasons, the petition for review is
22 DENIED.
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
25
26
27
5
