         12-4718
         Zhao v. Holder
                                                                                        BIA
                                                                                  Weisel, I.J.
                                                                               A087 638 597
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                               CORRECTED 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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 7th day of March, two thousand fourteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                PIERRE N. LEVAL,
 9                ROBERT D. SACK,
10                     Circuit Judges.
11       _____________________________________
12
13       SHU XIU ZHAO,
14                Petitioner,
15
16                        v.                                    12-4718
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Thomas D. Barra, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; James A. Hunolt, Senior
27                                     Litigation Counsel; Jesse D. Lorenz,
28                                     Trial Attorney, Civil Division,
29                                     Office of Immigration Litigation,
30                                     United States Department of Justice,
31                                     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       Shu Xiu Zhao, a native and citizen of the People’s

 6   Republic of China, seeks review of an October 31, 2012 order

 7   of the BIA affirming the February 9, 2011 decision of an

 8   Immigration Judge (“IJ”), which denied her application for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).    See In re Shu Xiu Zhao,

11   No. A087 638 597 (B.I.A. Oct. 31, 2012), aff’g No. A087 638

12   597 (Immig. Ct. N.Y. City Feb. 9, 2011).    We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history of this case.

15       Under the circumstances of this case, we have reviewed

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

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

18   applicable standards of review are well-established. See 8

19   U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

20   F.3d 510, 513 (2d Cir. 2009).

21       Substantial evidence supports the agency’s finding that

22   Zhao’s testimony was not credible.    Zhao’s asylum

23   application omitted any reference to a March 2009 Falun Gong

                                     2
 1   parade and a later phone call from a friend of her husband’s

 2   criticizing her activities, but she testified about both.

 3   Zhao’s testimony omitted particulars of an April 2009 event

 4   highlighted in her asylum application.       Zhao’s omissions

 5   provide substantial support for the agency’s adverse

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

 7   F.3d 162, 167 (2d Cir. 2008).       The agency was not compelled

 8   to accept Zhao’s explanation that her attorney erroneously

 9   omitted the incidents when preparing her application.

10   Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).

11       Zhao argues that she referenced the March 2009 parade

12   in her asylum application, by submitting pictures of the

13   event, and that she in fact testified about the April 2009

14   incident.     However, she raised neither of these claims

15   before the BIA, and we therefore will not consider them.

16   Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-22 (2d

17   Cir. 2007).     In any event, neither argument has merit: (1)

18   Zhao was required to highlight the March 2009 incident in

19   her application, as she had the burden of establishing

20   eligibility for asylum, see Gashi v. Holder, 702 F.3d 130,

21   135 (2d Cir. 2012); and (2) Zhao testified about the April

22   2009 incident briefly, if at all, and did not mention that


                                     3
 1   onlookers at the April 2009 parade called Falun Gong

 2   supporters “traitors” and a “cult.”     Even if the agency

 3   erred in either respect, those omissions support the adverse

 4   credibility finding, and render a remand futile.     See Xiao

 5   Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338-40 (2d

 6   Cir. 2008).

 7       We decline to consider Zhao’s argument that the agency

 8   failed to determine whether she had a well-founded fear of

 9   persecution.     The finding that she did not present a

10   credible claim was a sufficient basis for the agency’s

11   decision.     See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)

12   (“As a general rule courts and agencies are not required to

13   make findings on issues the decision of which is unnecessary

14   to the results they reach.”).

15       Because Zhao’s withholding of removal and CAT claims

16   depend on the same factual predicate as the asylum claim,

17   the agency’s adverse credibility determination is also

18   dispositive of those forms of relief.     See Paul v. Gonzales,

19   444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S.

20   Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

21       For the foregoing reasons, the petition for review is

22   DENIED.     As we have completed our review, any stay of


                                     4
 1   removal that the Court previously granted in this petition

 2   is VACATED, and any pending motion for a stay of removal in

 3   this petition is DISMISSED as moot.    Any pending request for

 4   oral argument in this petition is DENIED in accordance with

 5   Federal Rule of Appellate Procedure 34(a)(2), and Second

 6   Circuit Local Rule 34.1(b).

 7                                 FOR THE COURT:
 8                                 Catherine O’Hagan Wolfe, Clerk
 9
10




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