09-2564-ag

Wu v. Holder

BIA

Weisel, IJ

A099 667 402

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

New York, on the 19th 4 day of July, two thousand eleven.

5

6 PRESENT:

7 GUIDO CALABRESI,

8 ROSEMARY S. POOLER, 

9 DENNY CHIN,

10 Circuit Judges. 

11 _______________________________________

12

13 NEN DI WU,

14 Petitioner, 15

16 v. 09-2564-ag

17

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent. 21 ______________________________________ 22

23 FOR PETITIONER: Norman Kwai Wing Wong, New York, New

24 York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Ernesto H. Molina, Jr.,

28 Assistant Director; Andrew N.

29 O’Malley, Trial Attorney, Office of

30 Immigration Litigation, Civil

31 Division, United States Department

32 of Justice, Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, and DECREED that the petition for review

4 is DENIED.

5 Petitioner Nen Di Wu, a native and citizen of China,

6 seeks review of a June 1, 2009, order of the BIA affirming

7 the September 4, 2007, decision of Immigration Judge (“IJ”)

8 Robert Weisel denying Wu’s application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Nen Di Wu, No. A099 667 402

11 (B.I.A. Jun. 1, 2009), aff’g No. A099 667 402 (Immig. Ct.

12 N.Y.C. Sept. 4, 2007). In an opinion issued today, we deny

13 the government’s motion to dismiss the petition pursuant to

14 the fugitive disentitlement doctrine. This order discusses

15 the merits of Wu’s petition for review. We assume the

16 parties’ familiarity with the underlying facts and

17 procedural history of this case.

18 Under the circumstances of this case, we review the

19 IJ’s decision as supplemented by the BIA’s decision. See

20 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

21 applicable standards of review are well-established. See 8

22 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

23 513 (2d Cir. 2009). 
3

1 Because Wu did not (a) raise any argument that there is

2 a reasonable possibility that he will be tortured in China

3 based on his illegal departure from the country or (b) make

4 any challenge to the translation in his proceedings before

5 the agency, and, in fact, explicitly requested a Mandarin

6 translation, we decline to address Wu’s CAT claim based on

7 illegal departure or his due process argument grounded in

8 language difficulties. See Lin Zhong v. U.S. Dep’t of

9 Justice, 480 F.3d 104, 107 n.1, 122 (2d Cir. 2007)

10 (reaffirming that this Court “may consider only those issues

11 that formed the basis for [the BIA’s] decision”). 

12 Accordingly, we limit our review to Wu’s challenge to the

13 agency’s denial of relief based on his lack of credibility

14 and insufficient corroboration.

15 The IJ denied Wu’s application for relief, making an

16 adverse credibility finding after concluding that Wu’s

17 testimony was “evasive” and “non-responsive” and was not

18 sufficiently corroborated. Wu’s arguments that the IJ’s

19 adverse credibility determination is erroneous are

20 unavailing. As noted above, because Wu did not raise this

21 issue before the BIA, we do not address his contention that

22 his testimony was unresponsive because of translation

23 errors. See Lin Zhong, 480 F.3d at 107 n.1. 
4

1 Wu also argues, however, that the IJ erred in basing

2 its adverse credibility ruling on his unresponsiveness

3 alone, without asking for additional details. See Shunfu Li

4 v. Mukasey, 529 F.3d 141, 147-48 (2d Cir. 2008) (a pre-REAL

5 ID Act case, finding error where the agency found an

6 applicant unresponsive without developing the record). But,

7 the record indicates that the IJ ensured that Wu was asked

8 questions repeatedly in order to solicit relevant details.

9 Because his testimony was not responsive despite these

10 requests, the IJ reasonably found that Wu was not credible. 

11 See id. Moreover, the IJ’s conclusion that Wu was not

12 responsive was supported by the specific finding that Wu was

13 unable to testify about when, after his alleged first

14 release from incarceration, he renewed his practice of

15 Christianity. See Li Hua Lin v. U.S. Dep’t of Justice, 453

16 F.3d 99, 109 (2d Cir. 2006) (holding that this court can be

17 “more confident in [its] review of observations about an

18 applicant’s demeanor where ... they are supported by

19 specific examples of inconsistent testimony”).

20 Wu contends, finally, that the IJ erred by requiring

21 that he corroborate his testimony. But, having found that

22 Wu’s testimony was not credible, the IJ did not err in
5

1 making him provide corroboration to rehabilitate his

2 testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

3 Cir. 2007) (finding that once an asylum applicant’s

4 testimony has been “called into question,” an IJ may

5 “properly rel[y] on the lack of corroborative evidence”). 

6 As the agency concluded, Wu failed to provide

7 corroboration of his regular religious worship in the United

8 States. Despite his testimony that he regularly attended

9 church in New York, no one from the church corroborated that

10 testimony. Additionally, the agency reasonably concluded

11 that Wu’s letter from his mother did not sufficiently

12 corroborate his claim that he was a Christian, for it did

13 not address his testimony that she led him to Christianity

14 or that they worshiped together. 

15 Because the agency reasonably determined that Wu’s

16 testimony was not credible, see Shunfu Li, 529 F.3d at

17 147-48, and that he failed to rehabilitate that testimony

18 through corroboration, see Biao Yang, 496 F.3d at 273, the

19 agency did not err in concluding that Wu failed to establish

20 his eligibility for asylum, withholding of removal, or CAT

21 relief. See 8 U.S.C. § 1158(b)(1)(B)(iii); Paul v.

22 Gonzales, 444 F.3d 148, 157 (2d Cir. 2006).
6

1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, any stay of

3 removal that the Court previously granted in this petition

4 is VACATED, and any pending motion for a stay of removal in

5 this petition is DISMISSED as moot. Any pending request for

6 oral argument in this petition is DENIED in accordance with

7 Federal Rule of Appellate Procedure 34(a)(2), and Second

8 Circuit Local Rule 34.1(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

11

12