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.

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 5th 4 day of June, two thousand twelve.

5

6 PRESENT:

7 GUIDO CALABRESI,

8 REENA RAGGI,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges. 

11 _____________________________________

12

13 JINNENG BAO,

14 Petitioner, 15

16 v. 11-3198-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Eric Y. Zheng, New York, New York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Mary Jane Candaux,

27 Assistant Director; Nicole J.

28 Thomas-Dorris, Trial Attorney,

29 Office of Immigration Litigation,

30 Civil Division, United States

31 Department of Justice, Washington,

32 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, in part, and GRANTED, in part.

5 Petitioner Jinneng Bao, a native and citizen of the

6 People’s Republic of China, seeks review of a July 15, 2011,

7 order of the BIA denying Bao’s motions to remand and

8 affirming the June 9, 2009, decision of Immigration Judge

9 (“IJ”) Barbara A. Nelson denying Bao’s application for

10 asylum, withholding of removal, and relief under the

11 Convention Against Torture (“CAT”). In re Jinneng Bao, No.

12 A087 441 645 (B.I.A. July 15, 2011), aff’g No. A087 441 645

13 (Immig. Ct. N.Y. City June 9, 2009). We assume the parties’

14 familiarity with the underlying facts and procedural history

15 in this case.

16 Under the circumstances of this case, we have reviewed

17 the IJ’s decision as supplemented by the BIA. See Yan Chen

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

19 applicable standards of review are well-established. 

20 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

21 F.3d 510, 513 (2d Cir. 2009); Li Yong Cao v. U.S. Dep’t of

22 Justice, 421 F.3d 149, 156-57 (2d Cir. 2005).
3

1 The IJ concluded that Bao did not establish his

2 eligibility for relief because his testimony was not

3 credible and he did not provide sufficient corroborating

4 evidence. Bao does not challenge the agency’s finding that

5 he failed to provide sufficient corroboration.

6 Bao now argues that the IJ’s adverse credibility

7 determination was not supported by the totality of the

8 circumstances because the IJ did not consider whether a

9 medical certificate and photographs, indicating that he was

10 beaten, rehabilitated his testimony. Cf. Biao Yang v.

11 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (explaining that

12 an applicant’s corroborating evidence may rehabilitate

13 otherwise questionable testimony). However, petitioners

14 must raise to the BIA the specific issues they later raise

15 in this Court. See Foster v. INS, 376 F.3d 75, 78 (2d Cir.

16 2004). While not jurisdictional, this judicially imposed

17 exhaustion requirement is mandatory. Lin Zhong v. U.S. Dept

18 of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007). Because

19 Bao failed to raise his argument that the IJ failed to

20 consider the medical certificate and photographs in his

21 appeal to the BIA, he did not exhaust the issue, and we

22 decline to address it in the first instance. Id.
4

1 Accordingly, we detect no error in the agency’s denial of

2 asylum, withholding of removal, and CAT relief.

3 While his appeal was pending before the BIA, Bao filed

4 three motions to remand with the BIA. His first motion

5 requested that the BIA remand for the IJ to consider

6 corroborating evidence that he did not submit during his

7 merits hearing on the advice of his trial counsel. To

8 prevail on an ineffective assistance of counsel claim, an

9 individual must comply with the procedures laid out by the

10 BIA in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). 

11 See Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005). Bao

12 asserts that he was excused from complying with Lozada

13 because his former trial counsel died before he filed his

14 motion. Yet, even if the attorney’s death excused Bao from

15 certain of Lozada’s requirements, it did not excuse him from

16 submitting an affidavit setting forth his agreement with his

17 attorney, and alleging how the attorney violated that

18 agreement. See id. Because Bao did not file such an

19 affidavit, the BIA did not abuse its discretion in denying

20 his first motion to remand based on his failure

21 “substantially” to comply with Lozada. See Jian Yun Zheng

22 v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir. 2005). 
5

1 Bao’s second and third motions to remand were based on

2 his conversion to Christianity and China’s persecution of

3 Christians. The BIA’s decision appears to have faulted Bao

4 for failing to demonstrate a change in conditions in China. 

5 If the BIA required Bao to establish such a change, it did

6 so in error, because Bao’s motion was a motion to remand,

7 not an untimely motion to reopen in the circumstances of

8 which a petitioner is required to meet the changed country

9 conditions exception to the time and number limits on

10 motions to reopen. Cf. Yuen Jin v. Mukasey, 538 F.3d 143,

11 152-56 (2d Cir. 2008) (discussing the changed country

12 conditions exception to the time and number limits on

13 motions to reopen).

14 The BIA also did not consider whether Bao had

15 established a prima facie claim for relief based on a

16 pattern or practice of persecution of Christians in China

17 that would warrant remand. An applicant can demonstrate

18 that he faces persecution “in one of two ways: first, by

19 offering evidence that [he] would be singled out

20 individually for persecution; and second, by proving the

21 existence of a pattern or practice in [his] country of

22 nationality of persecution of a group of persons similarly
6

1 situated to [him] and establishing [his] own inclusion in,

2 and identification with, such a group.” Hongsheng Leng v.

3 Mukasey, 528 F.3d 135, 142 (2d Cir. 2008) (quotations and

4 alterations omitted). 

5 As the BIA noted, Bao did not present any evidence

6 demonstrating that the authorities in China were likely to

7 become aware of his conversion and single him out

8 individually for persecution. See id. However, the BIA did

9 not address whether Bao’s evidence of the persecution of

10 Christians presented prima facie evidence of a pattern or

11 practice of persecution. See Li Yong Cao, 421 F.3d at 156

12 (noting that a motion to remand must establish an alien’s

13 prima facie eligibility for relief). Rather than evaluate

14 Bao’s evidence and adjudicate the pattern or practice claim

15 ourselves, we think it is “the better” course to remand this

16 aspect of Bao’s petition to the BIA. See Mufied v. Mukasey,

17 508 F.3d 88, 91-93 (2d Cir. 2007).

18 For the foregoing reasons, the petition for review is

19 DENIED in part, GRANTED in part, and REMANDED to the BIA for

20 further proceedings consistent with this order. As we have

21 completed our review, any stay of removal that the Court

22 previously granted in this petition is VACATED, and any
7

1 pending motion for a stay of removal in this petition is

2 DISMISSED as moot. Any pending request for oral argument in

3 this petition is DENIED in accordance with Federal Rule of

4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

5 34.1(b).

6 FOR THE COURT: 

7 Catherine O’Hagan Wolfe, Clerk