        08-1551-ag
        Ni v. Holder
                                                                                 BIA
                                                                            Straus, IJ
                                                                         A29 799 044
                                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 18 th day of February, two thousand         ten.
 5
 6      PRESENT:
 7                DENNIS JACOBS,
 8                             Chief Judge,
 9                ROSEMARY S. POOLER,
10                REENA RAGGI,
11                             Circuit Judges.
12      _______________________________________
13
14      ZHOU HUA NI,
15               Petitioner,
16
17                         v.                              08-1551-ag
18                                                         NAC
19
20      ERIC H. HOLDER JR., ATTORNEY GENERAL, *
21               Respondent.
22      _______________________________________
23
24      FOR PETITIONER:                  Kevin R. Murphy, Springfield,
25                                       Massachusetts.


                       *
                  Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
            Attorney General Eric H. Holder Jr. is automatically substituted for
            former Attorney General Michael B. Mukasey as the respondent in this
            case.
1    FOR RESPONDENT:        Gregory G. Katsas, Assistant
2                           Attorney General, Civil Division,
3                           John S. Hogan, Senior Litigation
4                           Counsel, Achiezer Guggenheim, Trial
5                           Attorney, Office of Immigration
6                           Litigation, U.S. Department of
7                           Justice, Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

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

12   review is DENIED.

13       Zhou Hua Ni, a native and citizen of the People’s

14   Republic of China, seeks review of a March 12, 2008 order of

15   the BIA affirming the June 22, 2006 decision of Immigration

16   Judge (“IJ”) Michael W. Straus, denying his application for

17   asylum, withholding of removal, and CAT relief.    In re Zhou

18   Hua Ni, No. A29 799 044 (B.I.A. Mar. 12, 2008), aff’g No.

19   A29 799 044 (Immig. Ct. Hartford, CT June 22, 2006).    We

20   assume the parties’ familiarity with the underlying facts

21   and procedural history of the case.

22       When the BIA adopts the decision of the IJ and

23   supplements the IJ’s decision, this Court reviews the

24   decision of the IJ as supplemented by the BIA.    See Yan Chen

25   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    We review

26   the agency’s factual findings, including adverse credibility

27   determinations, under the substantial evidence standard,


                                  2
1    treating them as “conclusive unless any reasonable

2    adjudicator would be compelled to conclude to the contrary.”

3    8 U.S.C. § 1252(b)(4)(B); see, e.g., Corovic v. Mukasey, 519

4    F.3d 90, 95 (2d Cir. 2008).     Questions of law and the

5    application of law to undisputed fact are reviewed de novo.

6    Salimatou Bah v. Mukasey, 529 F.3d 99, 104 (2d Cir. 2008).

7        As an initial matter, Ni has waived his CAT claim.       See

8    Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7

9    (2d Cir. 2005).   Furthermore, we decline to review Ni’s

10   claim that he has a well-founded fear that he will be

11   forcibly sterilized in China because he failed to exhaust

12   that claim before the agency.       See Lin Zhong v. U.S. Dep’t

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

14   addition, we generally lack jurisdiction to review the

15   agency’s determination under 8 U.S.C. § 1158(a)(2)(B), that

16   an asylum application is untimely or the agency’s finding

17   that untimeliness has not been excused by changed or

18   extraordinary circumstances, 8 U.S.C. § 1158(a)(2)(D).

19       We do retain jurisdiction to review “questions of law,”

20   8 U.S.C. § 1252(a)(2)(D), and       Ni’s argument that the

21   untimeliness of his application is excused by a change in

22   applicable asylum law presents such a question.       See Ilyas

23   Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007); Fakhry v.



                                     3
1    Mukasey, 524 F.3d 1057, 1062 (9th Cir. 2008); 8 U.S.C.

2    § 1252(a)(2)(D); 8 C.F.R. § 1208.4(a)(4)(i)(B).    Ni argues

3    that he was presumably ineligible for asylum until 1997 when

4    the BIA held in Matter of C-Y-Z-, 21 I.& N. Dec. 915 (B.I.A.

5    1997), that the forced sterilization of one spouse is an act

6    of persecution against the other.    However, even if that

7    change in law would excuse the untimely filing, Ni waited

8    nearly a decade after that decision was issued to file his

9    application, hardly a reasonable length of time.    See 8

10   C.F.R. § 1208.4(a)(4)(ii).    Moreover, the BIA’s holding in

11   Matter of C-Y-Z- has since been overruled both by this Court

12   in Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d

13   Cir. 2007), and by the Attorney General in Matter of J-S-,

14   24 I.& N. Dec. 520, 537 (B.I.A. 2008). Thus, Ni failed to

15   establish changed circumstances excusing the untimeliness of

16   his asylum application.

17       In addition, the agency’s adverse credibility

18   determination was supported by substantial evidence and

19   constituted a sufficient ground for denying Ni’s application

20   for withholding of removal.    According to Ni, there are

21   plausible explanations for certain incongruities, but the

22   agency was under no obligation to accept the explanations.

23   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).


                                    4
1    Moreover, the IJ did not err in finding that Ni’s

2    willingness to return to China undercut his testimony that

3    he had a well-founded fear of future persecution.    See

4    Ramsameachire v. Ashcroft, 357 F.3d 169, 183 (2d Cir.

5    2004)(stating that an applicant must establish that he has a

6    subjective fear of future persecution in order to be

7    eligible for asylum); see also Ngarurih v. Ashcroft, 371

8    F.3d 182, 188-89 (4th Cir. 2004).

9        Ni’s asylum application does not discuss his attendance

10   at an underground church in China. Ni argues that this

11   omission “cannot be viewed as substantial and material,” but

12   Ni’s claims for relief all depended on his allegation that

13   he participated in an underground church and faced

14   persecution on that basis.   Even if this omission were not

15   “substantial” and “material,” it would still suffice to

16   support the IJ’s adverse credibility determination under the

17   “totality of the circumstances.”    8 U.S.C.

18   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

19   167 (2d Cir. 2008).

20
21       For the foregoing reasons, the petition for review is

22   DENIED.

23                                FOR THE COURT:
24                                Catherine O’Hagan Wolfe, Clerk
25
26
27


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