Bo Fu Zhu v. Holder , 364 F. App'x 696 ( 2010 )

08-3980-ag
Zhu v. Holder
BIA
Holmes-Simmons, IJ
A98 355 307
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 8 th day of February, two thousand ten.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 SONIA SOTOMAYOR,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 BO FU ZHU,
14 Petitioner,
15
16 v. 08-3980-ag
17 NAC
18 ERIC H. HOLDER JR., 1
19 Respondent.
20 _______________________________________
21
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23
24
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder Jr. is
automatically substituted for former Acting Attorney
General Mark R. Filip as respondent in this case.
1 FOR PETITIONER: Bo Fu Zhu, pro se, Bayside, N.Y.
2
3 FOR RESPONDENT: Michael F. Hertz, Acting Assistant
4 Attorney General, Douglas E.
5 Ginsburg, Senior Litigation Counsel,
6 Zoe J. Heller, Trial Attorney,
7 Office of Immigration Litigation,
8 Civil Division, United States
9 Department of Justice, Washington,
10 D.C.
1112 UPON DUE CONSIDERATION of this petition for review of a
13 decision of the Board of Immigration Appeals (“BIA”), it is
14 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
15 review is DENIED.
16 Petitioner Bo Fu Zhu, a native and citizen of the
17 People’s Republic of China, seeks review of a July 25, 2008
18 order of the BIA affirming the November 27, 2006 decision of
19 Immigration Judge (“IJ”) Theresa Holmes-Simmons, denying his
20 applications for asylum, withholding of removal, and relief
21 under the Convention Against Torture (“CAT”). In re Bo Fu
22 Zhu, No. A98 355 307 (B.I.A. Jul. 25, 2008), aff’g No. A98
23 355 307 (Immig. Ct. N.Y. City Nov. 27, 2006). We assume the
24 parties’ familiarity with the underlying facts and
25 procedural history of the case.
26 We review the submissions of pro se petitioners broadly
27 to raise the best arguments they suggest. See Bertin v.
28 United States, 478 F.3d 489, 491 (2d Cir. 2007). Here,
29 however, even broadly construed, Zhu argues only that the
30 agency erred by failing to consider his claim that he would
2
1 be tortured by snakeheads if he is returned to China. Thus,
2 we deem the other arguments he made before the agency to
3 have been waived. See Yueqing Zhang v. Gonzales, 426 F.3d
4 540, 541 n.1, 545 n.7 (2d Cir. 2005). These include his
5 family planning claim, his claim that he would be tortured
6 by Chinese authorities for illegally departing the country,
7 and any claim that he was entitled to asylum or withholding
8 of removal where Zhu’s brief addresses only CAT relief.
9 While Zhu contends before this Court that the IJ erred
10 by failing to consider his CAT claim based on “snakehead
11 torture,” he did not make any such claim before the BIA.
12 The Government raises this failure to exhaust in its brief
13 to this Court. Accordingly, we decline to consider this
14 unexhausted issue. See Lin Zhong v. U.S. Dep’t of Justice,
15 480 F.3d 104, 119-22 (2d Cir. 2007). Because Zhu’s petition
16 for review is based solely on his unexhausted claim that he
17 will be tortured by snakeheads if returned to China, there
18 is nothing left for us to review.
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, the pending motion
21 for a stay of removal in this petition is DISMISSED as moot.
22
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
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