         09-4790-ag
         Hu v. Holder
                                                                                       BIA
                                                                                 Brennan, IJ
                                                                               A098 560 587
                         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 th day of July, two thousand ten.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                GUIDO CALABRESI,
 9                JOSÉ A. CABRANES,
10                     Circuit Judges.
11       ______________________________________
12
13       DONGFANG HU, ALSO KNOWN AS
14       DONG FANG HU,
15                Petitioner,
16
17                      v.                                      09-4790-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Ramesh K. Shrestha, New York, New
25                                     York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General, Civil Division; Richard M.
29                                     Evans, Assistant Director; Christina
30                                     Bechak Parascandola, Trial Attorney,
31                                     Office of Immigration Litigation,
32                                     U.S. Department of Justice,
33                                     Washington, D.C.
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, Dongfang Hu, a native and citizen of the

6    People’s Republic of China, seeks review of an October 22,

7    2009, order of the BIA affirming the January 8, 2008,

8    decision of Immigration Judge (“IJ”) Noel A. Brennan denying

9    petitioner’s application for asylum, withholding of removal,

10   and relief under the Convention Against Torture (“CAT”).          In

11   re Dongfang Hu, No. A 098 560 587 (B.I.A. Oct. 22, 2009),

12   aff’g No. A 098 560 587 (Immig. Ct. N.Y. City Jan. 8, 2008).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history of the case.

15       Under the circumstances of this case, we review both

16   the IJ’s and the BIA’s opinions.       See Zaman v. Mukasey, 514

17   F.3d 233, 237 (2d Cir. 2008).       The applicable standards of

18   review are well-established.    Corovic v. Mukasey, 519 F.3d

19   90, 95 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d

20   99, 110 (2d Cir. 2008).

21       Hu challenges both the IJ’s partial adverse credibility

22   determination and the IJ’s finding that she was not

23   persecuted based on political opinion.       In evaluating Hu’s

                                     2
1    credibility regarding her testimony that she was forced to

2    hide from Chinese authorities, the IJ found that: (1) her

3    demeanor was not forthright and direct; (2) she implausibly

4    could not remember how frequently the police questioned her

5    relatives about her whereabouts; and (3) she failed to

6    adequately corroborate her testimony.    Hu does not challenge

7    these findings, which stand as valid bases for the IJ’s

8    adverse credibility determination.    See Shunfu Li v.

9    Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).

10       The IJ additionally declined to credit Hu’s testimony

11   because: (1) she implausibly could not identify who she

12   stayed with when she was in hiding; and (2) her testimony

13   that police visited her grandmother’s house looking for her

14   was contradicted by her affidavit and her father’s letter,

15   neither of which mentioned the visit.    Hu’s assertion that

16   the IJ erred by failing to elicit greater detail regarding

17   these implausibilities is unavailing, as Hu bears the burden

18   of proof to establish that she is eligible for asylum,

19   see 8 C.F.R. § 1208.13(a).   We note also that, contrary to

20   Hu’s assertion, the IJ did not err in relying on the

21   omission in her affidavit as a basis for her adverse

22   credibility determination.   See Xiu Xia Lin v. Mukasey, 534

23   F.3d 162, 166 n.3 (2d Cir. 2008).    Thus, the IJ’s adverse

                                   3
1    credibility determination is supported by substantial

2    evidence.

3        Because the IJ found that Hu credibly testified

4    regarding the incidents involving her refusal to sell her

5    store, the IJ’s adverse credibility determination is not

6    dispositive of Hu’s claim.   In order to demonstrate

7    eligibility for asylum and withholding of removal, the

8    applicant must establish that the persecution suffered or

9    feared bears a nexus to his or her race, religion,

10   nationality, membership in a particular social group, or

11   political opinion.   8 U.S.C. § 1101(a)(42).   Specifically,

12   we have found that opposition to government corruption may

13   contain a political dimension that constitutes a protected

14   ground under the Immigration and Nationality Act.      See

15   Yueqing Zhang v. Gonzales, 426 F.3d 540, 547-48 (2d Cir.

16   2005) (noting that “opposition to endemic corruption or

17   extortion, no less than opposition to other government

18   practices or policies, may have a political dimension when

19   it transcends mere self-protection and represents a

20   challenge to the legitimacy or authority of the ruling

21   regime.”).

22       Although Hu asserts that Lin destroyed her property on

23   account of her opposition to police corruption, the IJ

                                   4
1    properly noted that Hu failed to proffer any evidence that

2    the harm she endured was on account of a protected ground.

3    Indeed, her own testimony discusses only Lin’s frustration

4    at Hu’s refusal to sell her store to him and is devoid of

5    any indication that Lin damaged her store because of any

6    political opinion, actual or imputed.   As the IJ correctly

7    noted, Hu provided “no evidence . . . that this is not some

8    criminal conduct or extortion being engaged in by some

9    private businessman.”   We therefore find no error in the

10   IJ’s determination that Hu failed to demonstrate the

11   requisite nexus to establish her eligibility for asylum.

12   See id.(noting that an important question for determining

13   the nature of an applicant’s opposition is “whether the

14   persecutor was attempting to suppress a challenge to the

15   governing institution, as opposed to a challenge to

16   isolated, aberrational acts of greed or malfeasance.”).

17       Inasmuch as Hu’s claim for withholding of removal

18   shares the same factual predicate as her claim for asylum,

19   the agency’s finding is fatal to that claim as well.     See

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

21   Moreover, although Hu sets forth the standard for CAT relief

22   in her brief before this Court, she does not challenge the

23   basis of the IJ’s denial of CAT relief - that she did not

                                   5
1    testify that she would be subject to anything amounting to

2    torture - or otherwise argue that any evidence established a

3    likelihood of torture upon return to China.   Accordingly,

4    any challenge to the agency’s denial of CAT relief should be

5    deemed waived.   See Yueqing Zheng, 426 F.3d at 545 n.7.

6        For the foregoing reasons, the petition for review is

7    DENIED.   As we have completed our review, any pending motion

8    for a stay of removal in this petition is DISMISSED as moot.

9    Any pending request for oral argument in this petition is

10   DENIED in accordance with Federal Rule of Appellate

11   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

12                               FOR THE COURT:
13                               Catherine O’Hagan Wolfe, Clerk

14




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