         09-2889-ag
         He v. Holder
                                                                                           BIA
                                                                                       Lamb, IJ
                                                                                   A079 333 570
                             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 22 nd day of March, two thousand ten.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                GERARD E. LYNCH,
10                   Circuit Judges.
11       _______________________________________
12
13       ZU PING HE,
14                Petitioner,
15
16                      v.                                        09-2889-ag
17                                                                NAC
18       ERIC H. HOLDER, Jr., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 Yimin Chen, New York, New York.
24
25       FOR RESPONDENT:                 Tony West, Assistant Attorney
26                                       General, Ernesto H. Molina, Jr.,
27                                       Assistant Director, M. Lee Quinn,
28                                       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 in part and DISMISSED in part.

5        Petitioner Zu Ping He, a native and citizen of the

6    People’s Republic of China, seeks review of a June 8, 2009,

7    order of the BIA affirming the December 10, 2007, decision

8    of Immigration Judge (“IJ”) Elizabeth A. Lamb, pretermitting

9    his application for asylum, and denying his application for

10   withholding of removal and relief under the Convention

11   Against Torture (“CAT”).    In re Zu Ping He, No. A079 333 570

12   (B.I.A. June 8, 2009), aff’g No. A079 333 570 (Immig. Ct.

13   N.Y. City Dec. 10, 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 the

17   BIA’s affirmance of the IJ’s adverse credibility

18   determination.   See Xue Hong Yang v. U.S. Dep’t of Justice,

19   426 F.3d 520, 522 (2d Cir. 2005).    “We defer . . . to an

20   IJ’s credibility determination unless, from the totality of

21   the circumstances, it is plain that no reasonable factfinder

22   could make such an adverse credibility ruling.”       Xiu Xia Lin


                                    2
1    v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).   Because the

2    BIA declined to reach the IJ’s pretermission of He’s asylum

3    application or her alternative burden of proof finding, we

4    assume for purposes of our analysis that the BIA rejected

5    those findings.

6        Before this Court, He argues that: (1) the IJ erred in

7    finding him ineligible for CAT relief; and (2) he was

8    prejudiced by the IJ’s denial of his motion for a change of

9    venue.   However, He failed to make those arguments on appeal

10   to the BIA.   Accordingly, we lack jurisdiction to consider

11   them in the first instance and dismiss the petition for

12   review to that extent.   See 8 U.S.C. § 1252(d)(1).

13       Substantial evidence supports the IJ’s adverse

14   credibility determination.   As the IJ noted: (1) although He

15   testified that a family planning official punched him, his

16   asylum application omitted that assertion; and (2) although

17   He testified that family planning officials forced his wife

18   into a car and took her to the hospital for sterilization,

19   his asylum application stated that his wife “followed them

20   to the hospital” because “[she] knew [he] was the only

21   financial source of the family . . . .”   He argues that the

22   omission did not contradict his testimony, and that the


                                   3
1    statement in his application concerning his wife merely

2    suggested her “subjective mind.”   However, the agency was

3    entitled to rely on these discrepancies to find He not

4    credible.   See 8 U.S.C. § 1158(b)(1)(B)(iii).

5        Accordingly, considering the totality of the

6    circumstances and all relevant factors, the IJ’s adverse

7    credibility determination was supported by substantial

8    evidence.   As the only evidence of a threat to He’s life or

9    freedom depended upon his credibility, the adverse

10   credibility determination in this case necessarily precludes

11   success on his claim for asylum and withholding of removal.

12   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

13       For the foregoing reasons, the petition for review is

14   DENIED in part and DISMISSED in part.   As we have completed

15   our review, any stay of removal that the Court previously

16   granted in this petition is VACATED, and any pending motion

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

18
19                               FOR THE COURT:
20                               Catherine O’Hagan Wolfe, Clerk
21
22




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