Pursuant to Federal Rule of Appellate Procedure 1

43(c)(2), Attorney General Eric H. Holder, Jr., is

automatically substituted for former Attorney General

Michael B. Mukasey as respondent in this case.

08-5095-ag

Zhao v. Holder

BIA

Hom, IJ

A 090 347 497

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1

AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE

ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE

DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

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 30 day of December, two thousand nine. th

5

6 PRESENT:

7 JON O. NEWMAN,

8 JOSEPH M. McLAUGHLIN,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 _______________________________________

12

13 XIU LI ZHAO,

14 Petitioner, 

15

16 v. 08-5095-ag

17 NAC

18 ERIC H. HOLDER, JR., ATTORNEY GENERAL, 1

19 UNITED STATES DEPARTMENT OF JUSTICE,

20 Respondent.

21 _______________________________________
2

1 FOR PETITIONER: Pro Se.

2

3 FOR RESPONDENT: Tony West, Assistant Attorney

4 General; Lyle D. Jentzer, Senior

5 Litigation Counsel; Glen T. Jaeger,

6 Trial Attorney, Office of

7 Immigration Litigation, Civil

8 Division, United States Department

9 of Justice, 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 Petitioner Xiu Li Zhao, a native and citizen of China,

16 seeks review of the September 18, 2008 order of the BIA

17 affirming the November 20, 2007 decision of Immigration

18 Judge (“IJ”) Sandy Hom denying her application for asylum,

19 withholding of removal, and relief under the Convention

20 Against Torture (“CAT”). In re Xiu Li Zhao, No. A 090 347

21 497 (B.I.A. Sept. 18, 2008), aff’g No. A 090 347 497 (Immig.

22 Ct. N.Y. City Nov. 20, 2007). We assume the parties’

23 familiarity with the underlying facts and procedural history

24 in this case.

25 When the BIA “agrees with the IJ’s conclusion that a

26 petitioner is not credible and, without rejecting any of the

27 IJ’s grounds for decision, emphasizes particular aspects of

28 that decision,” we review both the BIA’s and IJ’s opinions –
3

1 “or more precisely, we review the IJ’s decision including

2 the portions not explicitly discussed by the BIA.” Yun-Zui

3 Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). We

4 review the agency’s factual findings, including adverse

5 credibility determinations, under the substantial evidence

6 standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.

7 Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). For asylum

8 applications governed by the amendments made to the

9 Immigration and Nationality Act by the REAL ID Act of 2005,

10 the agency may, considering the totality of the

11 circumstances, base a credibility finding on an asylum

12 applicant’s demeanor, the plausibility of his or her

13 account, and inconsistencies in his or her statements,

14 without regard to whether they go “to the heart of the

15 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). We

16 “defer to an IJ’s credibility determination unless, from the

17 totality of the circumstances, it is plain that no

18 reasonable fact-finder could make such an adverse

19 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,

20 167 (2d Cir. 2008). We review de novo questions of law and

21 the application of law to undisputed fact. See Salimatou

22 Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
4

1 As a preliminary matter, although Zhao did not

2 challenge the IJ’s adverse credibility determination before

3 the BIA, the BIA discussed that determination in its

4 opinion. If the BIA addresses issues not raised by a

5 petitioner, those issues may be considered exhausted and may

6 be reviewed by this Court. See Waldron v. INS, 17 F.3d 511,

7 515 n.7 (2d Cir. 1994). Therefore, Zhao did not fail to

8 exhaust her administrative remedies with respect to the IJ’s

9 adverse credibility determination. 

10 In her brief, Zhao does not challenge the IJ’s findings

11 that: (1) her husband’s testimony regarding his involvement

12 with Zhao’s pro-democracy group in China was inconsistent

13 with his written statement; (2) her husband’s demeanor was

14 “quizzical” and that he was “constantly repeating the

15 question that was asked of him;” (3) she was unable to

16 describe the location of a demonstration she allegedly

17 attended in New York City; (4) a witness she presented to

18 testify to her pro-democracy activities in the United States

19 offered inconsistent and contradictory testimony as to

20 Zhao’s membership in the China Freedom and Democracy Party;

21 and (5) she did not mention her involvement with any

22 political group in the United States in her asylum
5

1 application or the attached written statement. While Zhao’s

2 pro se arguments are construed broadly, see Weixel v. Bd. of

3 Educ., 287 F.3d 138, 145-46 (2d Cir. 2002), she fails to so

4 much as mention any of these findings in her brief. Thus,

5 she has waived any challenge to these findings, Yueqing

6 Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.

7 2005), and they stand as valid bases for the IJ’s adverse

8 credibility determination. See Shunfu Li v. Mukasey, 529

9 F.3d 141, 146-47 (2d Cir. 2008). 

10 Zhao does challenge the IJ’s finding that her oral

11 testimony and written statement were inconsistent because

12 she testified that she had been punched, kicked, and beaten

13 with an electric baton but had not mentioned those details

14 in her written statement. Zhao argues that, on the

15 contrary, her written statement “was indeed fairly detailed

16 in describing what happened to her in the course of the

17 detention.” However, this argument does not explain the

18 omissions from her written statement, and the IJ was

19 entitled to rely on them. Regardless, because Zhao fails to

20 raise any challenge to the IJ’s other credibility findings,

21 they provide substantial evidence for the agency’s adverse

22 credibility determination. See 8 U.S.C. § 1252(b)(4)(B);
6

1 Xiu Xia Lin, 534 F.3d at 167. Therefore, the IJ did not err

2 in denying Zhao’s application for asylum and withholding of

3 removal because the only evidence that Zhao would be

4 persecuted depended on her credibility. See Paul v.

5 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

6 Finally, Zhao did not challenge the IJ’s denial of CAT

7 relief before the BIA. We are thus without jurisdiction to

8 consider any challenge to that denial of relief. 8 U.S.C. 

9 § 1252(d)(1). Regardless, Zhao does not raise her claim for

10 CAT relief in her brief, and has therefore waived any

11 challenge to the agency’s denial of that claim. See Yueqing

12 Zhang, 426 F.3d at 541 n.1, 545 n.7.

13 For the foregoing reasons, the petition for review is

14 DENIED. As we have completed our review, any pending motion

15 for a stay of removal in this petition is DISMISSED as moot. 

16 Any pending request for oral argument in this petition is

17 DENIED in accordance with Federal Rule of Appellate

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

19

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

22

23 By:___________________________