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 P RECEDENTIAL**  **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** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 19 th** **day of July, two thousand eleven.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **ROSEMARY S. POOLER,** 8 **DENNY CHIN,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **NEN DI WU,** 13 Petitioner**,** 14 15 **v. 09-2564-ag** 16 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**______________________________________** 21 22 **FOR PETITIONER: Norman Kwai Wing Wong, New York, New** 23 **York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Ernesto H. Molina, Jr.,** 27 **Assistant Director; Andrew N.** 28 **O’Malley, Trial Attorney, Office of** 29 **Immigration Litigation, Civil** 30 **Division, United States Department** 31 **of Justice, Washington, D.C.** 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, and DECREED that the petition for review 3 is DENIED. 4 Petitioner Nen Di Wu, a native and citizen of China, 5 seeks review of a June 1, 2009, order of the BIA affirming 6 the September 4, 2007, decision of Immigration Judge (“IJ”) 7 Robert Weisel denying Wu’s application for asylum, 8 withholding of removal, and relief under the Convention 9 Against Torture (“CAT”). In re Nen Di Wu , No. A099 667 402 10 (B.I.A. Jun. 1, 2009), aff’gNo. A099 667 402 (Immig. Ct. 11 N.Y.C. Sept. 4, 2007). In an opinion issued today, we deny 12 the government’s motion to dismiss the petition pursuant to 13 the fugitive disentitlement doctrine. This order discusses 14 the merits of Wu’s petition for review. We assume the 15 parties’ familiarity with the underlying facts and 16 procedural history of this case. 17 Under the circumstances of this case, we review the 18 IJ’s decision as supplemented by the BIA’s decision. See 19 Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 20 applicable standards of review are well-established. See 8 21 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 22 513 (2d Cir. 2009). 233 Because Wu did not (a) raise any argument that there is 1 a reasonable possibility that he will be tortured in China 2 based on his illegal departure from the country or (b) make 3 any challenge to the translation in his proceedings before 4 the agency, and, in fact, explicitly requested a Mandarin 5 translation, we decline to address Wu’s CAT claim based on 6 illegal departure or his due process argument grounded in 7 language difficulties. See Lin Zhong v. U.S. Dep’t of 8 Justice , 480 F.3d 104, 107 n.1, 122 (2d Cir. 2007) 9 (reaffirming that this Court “may consider only those issues 10 that formed the basis for [the BIA’s] decision”). 11 Accordingly, we limit our review to Wu’s challenge to the 12 agency’s denial of relief based on his lack of credibility 13 and insufficient corroboration. 14 The IJ denied Wu’s application for relief, making an 15 adverse credibility finding after concluding that Wu’s 16 testimony was “evasive” and “non-responsive” and was not 17 sufficiently corroborated. Wu’s arguments that the IJ’s 18 adverse credibility determination is erroneous are 19 unavailing. As noted above, because Wu did not raise this 20 issue before the BIA, we do not address his contention that 21 his testimony was unresponsive because of translation 22

errors. See Lin Zhong, 480 F.3d at 107 n.1. 234 Wu also argues, however, that the IJ erred in basing 1 its adverse credibility ruling on his unresponsiveness 2 alone, without asking for additional details. See Shunfu Li 3 v. Mukasey, 529 F.3d 141, 147-48 (2d Cir. 2008) (a pre-REAL 4 ID Act case, finding error where the agency found an 5 applicant unresponsive without developing the record). But, 6 the record indicates that the IJ ensured that Wu was asked 7 questions repeatedly in order to solicit relevant details. 8 Because his testimony was not responsive despite these 9 requests, the IJ reasonably found that Wu was not credible. 10 See id.Moreover, the IJ’s conclusion that Wu was not 11 responsive was supported by the specific finding that Wu was 12 unable to testify about when, after his alleged first 13 release from incarceration, he renewed his practice of 14 Christianity. See Li Hua Lin v. U.S. Dep’t of Justice , 453 15 F.3d 99, 109 (2d Cir. 2006) (holding that this court can be 16 “more confident in [its] review of observations about an 17 applicant’s demeanor where ... they are supported by 18 specific examples of inconsistent testimony”). 19 Wu contends, finally, that the IJ erred by requiring 20 that he corroborate his testimony. But, having found that 21 Wu’s testimony was not credible, the IJ did not err in 225 making him provide corroboration to rehabilitate his 1 testimony. See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d 2 Cir. 2007) (finding that once an asylum applicant’s 3 testimony has been “called into question,” an IJ may 4 “properly rel[y] on the lack of corroborative evidence”). 5 As the agency concluded, Wu failed to provide 6 corroboration of his regular religious worship in the United 7 States. Despite his testimony that he regularly attended 8 church in New York, no one from the church corroborated that 9 testimony. Additionally, the agency reasonably concluded 10 that Wu’s letter from his mother did not sufficiently 11 corroborate his claim that he was a Christian, for it did 12 not address his testimony that she led him to Christianity 13 or that they worshiped together. 14 Because the agency reasonably determined that Wu’s 15 testimony was not credible, see Shunfu Li , 529 F.3d at 16 147-48, and that he failed to rehabilitate that testimony 17 through corroboration, see Biao Yang, 496 F.3d at 273, the 18 agency did not err in concluding that Wu failed to establish 19 his eligibility for asylum, withholding of removal, or CAT 20 relief. See8 U.S.C. § 1158(b)(1)(B)(iii) ; Paul v. 21 Gonzales, 444 F.3d 148, 157 (2d Cir. 2006). 226 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, any stay of 2 removal that the Court previously granted in this petition 3 is VACATED, and any pending motion for a stay of removal in 4 this petition is DISMISSED as moot. Any pending request for 5 oral argument in this petition is DENIED in accordance with 6 Federal Rule of Appellate Procedure 34(a)(2), and Second 7 Circuit Local Rule 34.1(b). 8

FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11 12