Hong Duan v. Holder , 363 F. App'x 847 ( 2010 )

08-1919-ag
Duan v. Holder
BIA
Hom, IJ
A76 124 328
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 11 th day of February, two thousand ten.
5
6 PRESENT:
7 JON O.NEWMAN, 1
8 ROSEMARY S. POOLER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 HONG DUAN,
14 Petitioner,
15
16 v. 08-1919-ag
17 NAC
18 ERIC H. HOLDER JR., UNITED STATES
19 ATTORNEY GENERAL, 2
20 Respondent.
21 _______________________________________
1
The Honorable Sonia Sotomayor, originally a member of this panel,
was elevated to the Supreme Court on August 8, 2009. The Clerk has
designated, by random selection, the Honorable Jon O. Newman to replace
her. See Local Rule 0.14(2).
2
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 respondent in this case.
1 FOR PETITIONER: David J. Rodkin, New York, New York.
2
3 FOR RESPONDENT: Gregory G. Katsas, Assistant
4 Attorney General; Carl H. McIntyre,
5 Assistant Director; Justin R.
6 Markel, Attorney, Office of
7 Immigration Litigation, United
8 States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED, that the petition for review
14 is DENIED.
15 Hong Duan, a native and citizen of the People’s
16 Republic of China, seeks review of a March 28, 2008 order of
17 the BIA, affirming the May 15, 2006 decision of Immigration
18 Judge (“IJ”) Sandy K. Hom, which denied his application for
19 asylum, withholding of removal, and relief under the
20 Convention Against Torture (“CAT”). In re Hong Duan, No.
21 A76 124 328 (B.I.A. Mar. 28, 2008), aff’g No. A76 124 328
22 (Immig. Ct. N.Y. City May 15, 2006). We assume the parties’
23 familiarity with the underlying facts and procedural history
24 in this case.
25 As an initial matter, we note that the government
26 correctly argues that Duan waives any challenge to the
27 agency’s denial of his application for relief insofar as it
2
1 was based on his family planning claim. See Yueqing Zhang
2 v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
3 Likewise, Duan waives any challenge to the agency’s denial
4 of his application for CAT relief. Id. We do not agree,
5 however, with the government’s contention that Duan waives
6 any challenge to the IJ’s burden of proof finding. Indeed,
7 as the BIA indicated, the IJ’s burden of proof finding was
8 inextricably linked to his adverse credibility
9 determination, which Duan challenges before this Court.
10 Additionally, the government incorrectly argues that Duan
11 failed to exhaust before the BIA his argument that the IJ
12 erred in concluding that his whistle blowing activities did
13 not constitute a protected ground under the Immigration and
14 Nationality Act. See Lin Zhong v. U.S. Dep’t of Justice,
15 480 F.3d 104, 119-20 (2d Cir. 2007). We need not consider
16 this argument, however, where the IJ alternatively
17 considered his whistle blowing activities as an exercise of
18 his political opinion and, as discussed below, reasonably
19 found him not credible. See Jin Hui Gao v. U.S. Att’y Gen.,
20 400 F.3d 963, 964 (2d Cir. 2005).
21 When, as here, the BIA agrees with the IJ’s conclusion
22 that a petitioner is not credible and, without rejecting any
3
1 of the IJ’s grounds for decision, emphasizes particular
2 aspects of that decision, we review both the BIA’s and IJ’s
3 opinions – or more precisely, we review the IJ’s decision
4 including the portions not explicitly discussed by the BIA.
5 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).
6 We review the agency’s factual findings, including adverse
7 credibility findings, under the substantial evidence
8 standard. See 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen
9 Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).
10 Substantial evidence supports the agency’s adverse
11 credibility determination. See Jin Hui Gao, 400 F.3d at12 964. 3 Indeed, the IJ reasonably found implausible Duan’s
13 purported ability to obtain an exit permit and depart China
14 using his own passport, particularly where he claimed that
15 the Public Security Bureau (“PSB”) sought to arrest him and
16 where there was evidence in the record that the PSB is the
17 office that issues exit permits and provides fugitive lists
18 to Chinese airports. See Ying Li v. BCIS, 529 F.3d 79, 82-
19 83 (2d Cir. 2008). Moreover, Duan waives any specific
3
Duan incorrectly argues that in finding him not credible
both the IJ and BIA ignored our order on remand by failing to apply
the principles addressed in Secaida-Rosales v. INS, 331 F.3d 297 (2d
Cir. 2003). To the contrary, both the IJ and the BIA applied the
principles discussed in that case.
4
1 challenges to the IJ’s findings that: (1) it was implausible
2 that Chinese government officials would have selected him to
3 be a member of a corruption task force; and (2) that he
4 failed to submit sufficient corroborating evidence. See
5 Yueqing Zhang, 426 F.3d at 541 n.1, 545 n.7.
6 Ultimately, because a reasonable fact-finder would not
7 be compelled to conclude to the contrary, the IJ’s adverse
8 credibility determination was supported by substantial
9 evidence. See Shu Wen Sun, 510 F.3d at 379. Thus, the
10 agency’s denial of Duan’s applications for asylum and
11 withholding of removal based on his political opinion was
12 proper. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
13 2006) (recognizing that withholding of removal necessarily
14 fails if the applicant is unable to show the objective
15 likelihood of persecution needed to make out an asylum
16 claim).
17 For the foregoing reasons, the petition for review is
18 DENIED. Having completed our review, the pending motion for
19 a stay of removal in this petition is DISMISSED as moot.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
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