         09-3009-ag
         Li v. Holder
                                                                                           BIA
                                                                                     Brennan, IJ
                                                                                   A098 220 216

                             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 26 th day of March, two thousand ten.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                REENA RAGGI,
 9                RICHARD C. WESLEY,
10                    Circuit Judges.
11       _______________________________________
12
13       GUO LIN LI,
14                Petitioner,
15
16                      v.                                        09-3009-ag
17                                                                NAC
18       ERIC H. HOLDER, Jr., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 Yu Zhang, New York, New York.
24
25       FOR RESPONDENT:                 Tony West, Assistant Attorney
26                                       General, Cindy S. Ferrier, Senior
27                                       Litigation Counsel, Jessica E.
28                                       Sherman, Trial Attorney, Office of
29                                       Immigration Litigation, Civil
30                                       Division, United States Department
31                                       of Justice, Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

3    hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4    review is DENIED.

5        Petitioner Guo Lin Li, a native and citizen of the

6    People’s Republic of China, seeks review of a June 16, 2009,

7    order of the BIA, affirming the March 29, 2007, decision of

8    Immigration Judge (“IJ”) Noel Brennan, pretermitting Li's

9    application for asylum and denying his applications for

10   withholding of removal and relief under the Convention

11   Against Torture (“CAT”).    In re Guo Lin Li, No. A098 220 216

12   (B.I.A. June 16, 2009), aff’g No. A098 220 216 (Immig. Ct.

13   N.Y. City Mar. 29, 2007).    We assume the parties’

14   familiarity with the underlying facts and procedural history

15   of the case.

16       Under the circumstances of this case, we review both

17   the BIA’s and IJ’s opinions.    See Yun-Zui Guan v. Gonzales,

18   432 F.3d 391, 394 (2d Cir. 2005).     The applicable standards

19   of review are well-established.     See 8 U.S.C.

20   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

21   (2d Cir. 2009).

22       As an initial matter, we lack jurisdiction to consider

23   Li’s challenge to the pretermission of his asylum

                                    2
1    application.       8 U.S.C. § 1158(a)(3).   To the extent Li

2    asserts that the ineffective assistance of his prior counsel

3    excuses the untimeliness of his asylum application, that

4    argument is unexhausted.       See 8 U.S.C. § 1252(d)(1); Lin

5    Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d

6    Cir. 2007).       To the extent Li challenges the IJ’s

7    determination that he did not prove the timely filing of his

8    application, we lack jurisdiction to consider his argument

9    because it is neither a constitutional claim nor a question

10   of law.       See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Xiao Ji

11   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.

12   2006).

13        With respect to Li’s challenge to the denial of his

14   application for withholding of removal and CAT relief,

15   substantial evidence supports the IJ’s adverse credibility

16   determination. 1     The IJ based that determination, in part,

17   on Li’s demeanor, finding that he was evasive and hesitant.

18   Because Li failed to challenge the IJ’s demeanor finding, we

19   deem any such argument waived.        Yueqing Zhang v. Gonzales,

20   426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).        The IJ


               1
             Because Li filed his asylum application before May
       11, 2005, the amendments made to the Immigration and
       Nationality Act by the REAL ID Act of 2005 do not apply
       to his asylum application. See Pub. L. No. 109-13,
       § 101(h)(2), 119 Stat. 231, 305 (2005).

                                       3
1    further noted Li’s omission of certain facts from his

2    original and amended asylum applications.   While petitioners

3    are not required to list every incident of persecution on

4    their asylum applications, see Pavlova v. INS, 441 F.3d 82,

5    90 (2d Cir. 2006), as the IJ noted in her decision, the

6    omitted facts were at “the core of his claim,” so it was not

7    unreasonable to expect that he would include them, see

8    Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003),

9    overruled on other grounds by Xiu Xia Lin v. Mukasey, 534

10   F.3d 162 (2d Cir. 2008).   Furthermore, the IJ did not err in

11   declining to credit Li’s explanation that his prior attorney

12   failed to complete his application and fully detail his

13   persecution.   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

14   Cir. 2005).

15       Substantial evidence also supports the agency’s

16   reliance on Li’s failure to provide corroborating evidence.

17   Although Li declares that he provided corroborating evidence

18   demonstrating past persecution and a well-founded fear of

19   future persecution, he points to none.   In any event,

20   because the agency found Li not credible, it properly noted

21   the absence of documentary evidence to corroborate his

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

23   Cir. 2007).

24       Finally, Li contends that the IJ entered the hearing

25   with a preconceived notion that he was not credible, based

                                   4
1    on the IJ’s statement that “anyone can learn Falun Gong in

2    the United States.”   This statement does not reveal that the

3    IJ was biased such that we cannot conduct a “meaningful

4    review” of the agency’s decision.   See Ali v. Mukasey, 529

5    F.3d 478, 490 (2d Cir. 2008).

6         Substantial evidence supports the agency’s adverse

7    credibility determination.   See 8 U.S.C. § 1158(b)(1)(B)(iii).

8    Because the only evidence of a threat to Li’s life or freedom

9    depended upon his credibility, the adverse credibility

10   determination in this case necessarily precludes success on

11   his claim for withholding of removal and CAT relief.     See Paul

12   v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

13       For the foregoing reasons, the petition for review is

14   DENIED.   Having completed our review, we DISMISS the

15   petitioner's pending motion for a stay of removal as moot.

16
17                                FOR THE COURT:
18                                Catherine O’Hagan Wolfe, Clerk
19
20
21




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