09-1978-ag

Chen v. Holder

BIA

Hom, IJ

A 078 296 481

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

4 New York, on the 13 day of April, two thousand ten. th

5

6 PRESENT:

7 JOHN M. WALKER, Jr.,

8 JOSÉ A. CABRANES,

9 BARRINGTON D. PARKER,

10 Circuit Judges.

11 _______________________________________

12

13 YI LI CHEN,

14 Petitioner, 

15

16 v. 09-1978-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Vlad Kuzmin, New York, New York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney General;

26 Luis E. Perez, Senior Litigation Counsel;

27 Juria L. Jones, Trial Attorney, Office of

28 Immigration Litigation, Civil Division,

29 United States Department of Justice,

30 Washington, D.C.

31
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 Yi Li Chen, a native and citizen of China,

6 seeks review of the April 10, 2009, order of the BIA

7 affirming the May 31, 2007, decision of Immigration Judge

8 (“IJ”) Sandy K. Hom denying his application for asylum and

9 withholding of removal. In re Yi Li Chen, No. A 078 296 481

10 (B.I.A. Apr. 10, 2009), aff’g No. A 078 296 481 (Immig. Ct.

11 N.Y. City May 31, 2007). We assume the parties’ familiarity

12 with the underlying facts and procedural history in this

13 case.

14 Under the circumstances of this case, we consider both

15 the IJ’s and BIA’s opinions. Zaman v. Mukasey, 514 F.3d

16 233, 237 (2d Cir. 2008). The applicable standards of review

17 are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin

18 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

19 In addition to the statutory requirement that

20 petitioners exhaust the categories of relief they seek, 

21 8 U.S.C. § 1252(d)(1), petitioners must also raise to the

22 BIA the specific issues they later raise in this Court. See
3

1 Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004). While not

2 jurisdictional, this judicially imposed exhaustion

3 requirement is mandatory. Lin Zhong v. U.S. Dep’t of

4 Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007) Because Chen

5 failed to challenge the IJ’s adverse credibility

6 determination in his appeal to the BIA, we decline to

7 consider this issue. Thus, the IJ’s adverse credibility

8 determination is a valid basis for his denial of Chen’s

9 application for asylum. Accordingly, the IJ did not err in

10 denying Chen’s withholding of removal claim because both

11 claims were based on the same factual predicate. See Paul

12 v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006).

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 34.1(b).

19

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

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