         09-2564-ag
         Wu v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A099 667 402


                         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 19th day of July, two thousand eleven.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                ROSEMARY S. POOLER,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _______________________________________
12
13       NEN DI WU,
14                Petitioner,
15
16                      v.                                      09-2564-ag
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Norman Kwai Wing Wong, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Ernesto H. Molina, Jr.,
28                                     Assistant Director; Andrew N.
29                                     O’Malley, Trial Attorney, Office of
30                                     Immigration Litigation, Civil
31                                     Division, United States Department
32                                     of Justice, 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 Nen Di Wu, a native and citizen of China,

 6   seeks review of a June 1, 2009, order of the BIA affirming

 7   the September 4, 2007, decision of Immigration Judge (“IJ”)

 8   Robert Weisel denying Wu’s application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).     In re Nen Di Wu, No. A099 667 402

11   (B.I.A. Jun. 1, 2009), aff’g No. A099 667 402 (Immig. Ct.

12   N.Y.C. Sept. 4, 2007).     In an opinion issued today, we deny

13   the government’s motion to dismiss the petition pursuant to

14   the fugitive disentitlement doctrine. This order discusses

15   the merits of Wu’s petition for review. We assume the

16   parties’ familiarity with the underlying facts and

17   procedural history of this case.

18       Under the circumstances of this case, we review the

19   IJ’s decision as supplemented by the BIA’s decision.     See

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

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

22   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

23   513 (2d Cir. 2009).

                                     2
 1       Because Wu did not (a) raise any argument that there is

 2   a reasonable possibility that he will be tortured in China

 3   based on his illegal departure from the country or (b) make

 4   any challenge to the translation in his proceedings before

 5   the agency, and, in fact, explicitly requested a Mandarin

 6   translation, we decline to address Wu’s CAT claim based on

 7   illegal departure or his due process argument grounded in

 8   language difficulties.   See Lin Zhong v. U.S. Dep’t of

 9   Justice, 480 F.3d 104, 107 n.1, 122 (2d Cir. 2007)

10   (reaffirming that this Court “may consider only those issues

11   that formed the basis for [the BIA’s] decision”).

12   Accordingly, we limit our review to Wu’s challenge to the

13   agency’s denial of relief based on his lack of credibility

14   and insufficient corroboration.

15       The IJ denied Wu’s application for relief, making an

16   adverse credibility finding after concluding that Wu’s

17   testimony was “evasive” and “non-responsive” and was not

18   sufficiently corroborated. Wu’s arguments that the IJ’s

19   adverse credibility determination is erroneous are

20   unavailing. As noted above, because Wu did not raise this

21   issue before the BIA, we do not address his contention that

22   his testimony was unresponsive because of translation

23   errors.   See Lin Zhong, 480 F.3d at 107 n.1.

                                   3
 1       Wu also argues, however, that the IJ erred in basing

 2   its adverse credibility ruling on his unresponsiveness

 3   alone, without asking for additional details.    See Shunfu Li

 4   v. Mukasey, 529 F.3d 141, 147-48 (2d Cir. 2008) (a pre-REAL

 5   ID Act case, finding error where the agency found an

 6   applicant unresponsive without developing the record). But,

 7   the record indicates that the IJ ensured that Wu was asked

 8   questions repeatedly in order to solicit relevant details.

 9   Because his testimony was not responsive despite these

10   requests, the IJ reasonably found that Wu was not credible.

11   See id.   Moreover, the IJ’s conclusion that Wu was not

12   responsive was supported by the specific finding that Wu was

13   unable to testify about when, after his alleged first

14   release from incarceration, he renewed his practice of

15   Christianity.   See Li Hua Lin v. U.S. Dep’t of Justice, 453

16   F.3d 99, 109 (2d Cir. 2006) (holding that this court can be

17   “more confident in [its] review of observations about an

18   applicant’s demeanor where ... they are supported by

19   specific examples of inconsistent testimony”).

20       Wu contends, finally, that the IJ erred by requiring

21   that he corroborate his testimony. But, having found that

22   Wu’s testimony was not credible, the IJ did not err in


                                   4
 1   making him provide corroboration to rehabilitate his

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

 3   Cir. 2007) (finding that once an asylum applicant’s

 4   testimony has been “called into question,” an IJ may

 5   “properly rel[y] on the lack of corroborative evidence”).

 6       As the agency concluded, Wu failed to provide

 7   corroboration of his regular religious worship in the United

 8   States. Despite his testimony that he regularly attended

 9   church in New York, no one from the church corroborated that

10   testimony.   Additionally, the agency reasonably concluded

11   that Wu’s letter from his mother did not sufficiently

12   corroborate his claim that he was a Christian, for it did

13   not address his testimony that she led him to Christianity

14   or that they worshiped together.

15       Because the agency reasonably determined that Wu’s

16   testimony was not credible, see Shunfu Li, 529 F.3d at

17   147-48, and that he failed to rehabilitate that testimony

18   through corroboration, see Biao Yang, 496 F.3d at 273, the

19   agency did not err in concluding that Wu failed to establish

20   his eligibility for asylum, withholding of removal, or CAT

21   relief.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Paul v.

22   Gonzales, 444 F.3d 148, 157 (2d Cir. 2006).


                                   5
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12




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