11-3198-ag Bao v. Holder BIA Nelson, IJ A087 441 645 

### 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. 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 5 th** **day of June, two thousand twelve.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **REENA RAGGI,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **JINNENG BAO,** 13 Petitioner**,** 14 15 **v. 11-3198-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Eric Y. Zheng, New York, New York.** 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney** 25 **General; Mary Jane Candaux,** 26 **Assistant Director; Nicole J.** 27 **Thomas-Dorris, Trial Attorney,** 28 **Office of Immigration Litigation,** 29 **Civil Division, United States** 30 **Department of Justice, Washington,** 31 **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, in part, and GRANTED, in part. 4 Petitioner Jinneng Bao, a native and citizen of the 5 People’s Republic of China, seeks review of a July 15, 2011, 6 order of the BIA denying Bao’s motions to remand and 7 affirming the June 9, 2009, decision of Immigration Judge 8 (“IJ”) Barbara A. Nelson denying Bao’s application for 9 asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”). In re Jinneng Bao , No. 11 A087 441 645 (B.I.A. July 15, 2011), aff’gNo. A087 441 645 12 (Immig. Ct. N.Y. City June 9, 2009). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 in this case. 15 Under the circumstances of this case, we have reviewed 16 the IJ’s decision as supplemented by the BIA. See Yan Chen 17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 18 applicable standards of review are well-established. 19
See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 20 F.3d 510, 513 (2d Cir. 2009); Li Yong Cao v. U.S. Dep’t of 21 Justice , 421 F.3d 149, 156-57 (2d Cir. 2005). 223 The IJ concluded that Bao did not establish his 1 eligibility for relief because his testimony was not 2 credible and he did not provide sufficient corroborating 3 evidence. Bao does not challenge the agency’s finding that 4 he failed to provide sufficient corroboration. 5 Bao now argues that the IJ’s adverse credibility 6 determination was not supported by the totality of the 7 circumstances because the IJ did not consider whether a 8 medical certificate and photographs, indicating that he was 9 beaten, rehabilitated his testimony. Cf. Biao Yang v. 10 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (explaining that 11 an applicant’s corroborating evidence may rehabilitate 12 otherwise questionable testimony). However, petitioners 13 must raise to the BIA the specific issues they later raise 14 in this Court. See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 15 2004). While not jurisdictional, this judicially imposed 16 exhaustion requirement is mandatory. Lin Zhong v. U.S. Dept 17 of Justice , 480 F.3d 104, 119-20 (2d Cir. 2007). Because 18 Bao failed to raise his argument that the IJ failed to 19 consider the medical certificate and photographs in his 20 appeal to the BIA, he did not exhaust the issue, and we 21 decline to address it in the first instance. Id. 224 Accordingly, we detect no error in the agency’s denial of 1 asylum, withholding of removal, and CAT relief. 2 While his appeal was pending before the BIA, Bao filed 3 three motions to remand with the BIA. His first motion 4 requested that the BIA remand for the IJ to consider 5 corroborating evidence that he did not submit during his 6 merits hearing on the advice of his trial counsel. To 7 prevail on an ineffective assistance of counsel claim, an 8 individual must comply with the procedures laid out by the 9 BIA in Matter of Lozada , 19 I. & N. Dec. 637 (BIA 1988). 10
See Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005). Bao 11 asserts that he was excused from complying with Lozada 12 because his former trial counsel died before he filed his 13 motion. Yet, even if the attorney’s death excused Bao from 14 certain of Lozada ’s requirements, it did not excuse him from 15 submitting an affidavit setting forth his agreement with his 16 attorney, and alleging how the attorney violated that 17 agreement. See id.Because Bao did not file such an 18 affidavit, the BIA did not abuse its discretion in denying 19 his first motion to remand based on his failure 20 “substantially” to comply with Lozada

. See Jian Yun Zheng 21 v. U.S. Dep’t of Justice , 409 F.3d 43, 46 (2d Cir. 2005). 225 Bao’s second and third motions to remand were based on 1 his conversion to Christianity and China’s persecution of 2 Christians. The BIA’s decision appears to have faulted Bao 3 for failing to demonstrate a change in conditions in China. 4 If the BIA required Bao to establish such a change, it did 5 so in error, because Bao’s motion was a motion to remand, 6 not an untimely motion to reopen in the circumstances of 7 which a petitioner is required to meet the changed country 8 conditions exception to the time and number limits on 9 motions to reopen. Cf. Yuen Jin v. Mukasey, 538 F.3d 143, 10 152-56 (2d Cir. 2008) (discussing the changed country 11 conditions exception to the time and number limits on 12 motions to reopen). 13 The BIA also did not consider whether Bao had 14 established a prima facieclaim for relief based on a 15 pattern or practice of persecution of Christians in China 16 that would warrant remand. An applicant can demonstrate 17 that he faces persecution “in one of two ways: first, by 18 offering evidence that [he] would be singled out 19 individually for persecution; and second, by proving the 20 existence of a pattern or practice in [his] country of 21 nationality of persecution of a group of persons similarly 226 situated to [him] and establishing [his] own inclusion in, 1 and identification with, such a group.” Hongsheng Leng v. 2 Mukasey, 528 F.3d 135, 142 (2d Cir. 2008) (quotations and 3 alterations omitted). 4 As the BIA noted, Bao did not present any evidence 5 demonstrating that the authorities in China were likely to 6 become aware of his conversion and single him out 7 individually for persecution. See id.However, the BIA did 8 not address whether Bao’s evidence of the persecution of 9 Christians presented prima facie evidence of a pattern or 10 practice of persecution. See Li Yong Cao , 421 F.3d at 156 11 (noting that a motion to remand must establish an alien’s 12 prima facie eligibility for relief). Rather than evaluate 13 Bao’s evidence and adjudicate the pattern or practice claim 14 ourselves, we think it is “the better” course to remand this 15 aspect of Bao’s petition to the BIA. See Mufied v. Mukasey, 16 508 F.3d 88, 91-93 (2d Cir. 2007). 17 For the foregoing reasons, the petition for review is 18 DENIED in part, GRANTED in part, and REMANDED to the BIA for 19 further proceedings consistent with this order. As we have 20 completed our review, any stay of removal that the Court 21 previously granted in this petition is VACATED, and any 227 pending motion for a stay of removal in this petition is 1 DISMISSED as moot. Any pending request for oral argument in 2 this petition is DENIED in accordance with Federal Rule of 3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 4 34.1(b). 5
FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7