11-3143
    Tang v. Holder

                                                                                      BIA
                                                                                   Hom, IJ
                                                                              A095 660 278
                                                                              A095 660 279

                          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.

         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 28th day of August, two thousand twelve.

    PRESENT:
             ROBERT A. KATZMANN,
             BARRINGTON D. PARKER,
             DEBRA ANN LIVINGSTON,
                  Circuit Judges.
    _____________________________________

    LI XIANG TANG, HAO CHEN,
             Petitioners,

                     v.                                    11-3143
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONERS:               Bruno Joseph Bembi, Hempstead, N.Y.

    FOR RESPONDENT:                Tony West, Assistant Attorney General;
                                   Luis E. Perez, Senior Litigation
                                   Counsel; Kathryn L. Moore, Trial
                                   Attorney, 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.

    Petitioners Li Xiang Tang and Hao Chen, natives and

citizens of the People’s Republic of China, seek review of a

July 12, 2011, decision of the BIA affirming the June 2, 2009,

decision of an Immigration Judge (“IJ”) denying Tang’s

application for asylum, withholding of removal and relief

under the Convention Against Torture (“CAT”).    In re Li Xiang

Tang, Hao Chen, Nos. A095 660 278/279 (B.I.A. July, 12, 2011),

aff’g No. A095 660 278/279 (Immig. Ct. N.Y. City June 2,

2009).    We assume the parties’ familiarity with the underlying

facts and procedural history of the case.

    Under the circumstances of this case, we have reviewed

both the BIA’s and the IJ’s opinions.    See Yun-Zui Guan v.

Gonzales, 

, 394 (2d Cir. 2005) (per curiam).       The

applicable standards of review are well-established.     See

8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 

, 513 (2d Cir. 2009).

    Tang argues that, on remand from our prior decision in

these proceedings, see Li Xiang Tang v. Gonzales, 215 F. App’x


                                2
34 (2d Cir. 2007) (unpublished decision), the agency

impermissibly addressed her credibility, because this issue

was outside the scope of this Court’s remand order.    This

argument is without merit. Our order neither deemed Tang

credible nor foreclosed further review of her credibility.

See Guan v. INS, 

, 136 (2d Cir. 2006) (“[W]hen we

find fault with an adverse credibility finding, we will not

substitute our own judgment for the agency's, but ordinarily

will remand to the agency for additional explanation or

investigation.”).

    Substantial evidence supports the agency’s conclusion

that Tang did not testify credibly regarding her forced

abortion.   The agency’s adverse credibility determination was

supported by two specific inconsistencies in Tang’s account of

her alleged persecution.   First, Tang testified inconsistently

with respect to where she was when Chinese government family

planning officials allegedly apprehended her in order to

administer a forced abortion in June 2000.   Compare Certified

Administrative Record at 471 (Tang testifying that she was at

her mother’s home when family planning officials apprehended

her) with id. at 478-79 (Tang testifying that she was at her

own home when she was apprehended).   Second, Tang’s testimony


                               3
regarding how family planning officials learned of her

unlawful pregnancy was inconsistent with her written

statement.     Compare id. at 471, 479 (Tang testifying that

someone reported her pregnancy to the officials) with id. at

644 (Tang’s statement that family planning officials came

looking for her when she failed to report to an appointment to

have an IUD inserted).     When confronted with this

inconsistency on cross-examination, Tang failed to offer any

explanation.     See id. at 479-80.

    Tang also argues that, because the IJ gave the testimony

of her husband, Yong Chai Chen (“Chen”), little weight, the IJ

erred in relying on his testimony to find Tang not credible.

This argument, however, misapprehends the IJ’s discussion of

Chen’s testimony.    The IJ did not rely on inconsistencies

between Chen’s testimony and Tang’s testimony and evidence to

find Tang not credible.     Rather, because the IJ determined

that Chen’s testimony was not credible, the IJ declined to

rely on it to support Tang’s claims.     See id. at 58-60.

    Finally, Tang argues that the IJ erred in finding that

she had provided insufficient evidence to support her claim

that she feared the Chinese government would forcibly

sterilize her if she returned to China because she now has two


                                 4
children.    However, Tang did not raise this issue before the

BIA.    In addition to the statutory requirement that

petitioners exhaust the categories of relief they seek, 8

U.S.C. § 1252(d)(1), petitioners must also raise to the BIA

the specific issues they later raise in this Court.     See

Foster v. INS, 

, 78 (2d Cir. 2004).     While not

jurisdictional, this judicially imposed exhaustion requirement

is mandatory.     Lin Zhong v. U.S. Dep’t of Justice, 

, 119-20 (2d Cir. 2007).     Because the BIA did not have the

benefit of argument challenging the IJ’s conclusion on this

issue, see id. at 107 n.1, 122 (reaffirming that this Court

“may consider only those issues that formed the basis for [the

BIA’s] decision”), we decline to consider this unexhausted

issue, see id. at 107 n.1(b) (“Even if the government does not

point out a failure to exhaust an issue before the agency,

such a failure to exhaust is sufficient ground for the

reviewing court to refuse to consider that issue.”).

       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 DENIED as moot.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




                                 5