    11-217-ag
    Yan v. Holder
                                                                                  BIA
                                                                           Schoppert, IJ
                                                                          A089 250 390
                     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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 8th day of May, two thousand twelve.

    PRESENT:
             ROBERT D. SACK,
             RICHARD C. WESLEY,
             SUSAN L. CARNEY,
                 Circuit Judges.
    ______________________________________

    FAGUI YAN,
             Petitioner,

                    v.                                     11-217-ag
                                                           NAC
    ERIC H. HOLDER, JR.,
    UNITED STATES ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:               Steven K. Frankel, New York, New
                                  York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Susan K. Houser, Senior
                                  Litigation Counsel, John J.W.
                                  Inkeles, Trial Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is DISMISSED in part, and DENIED in part.

    Petitioner Fagui Yan, a native and citizen of China,

seeks review of a December 21, 2010 decision of the BIA

affirming the February 25, 2009 decision of Immigration

Judge (“IJ”) Douglas B. Schoppert, finding Yan’s application

for asylum to be untimely and denying his requests for

withholding of removal and relief under the Convention

Against Torture (“CAT”).     In re Fagui Yan, No. A089 250 390

(B.I.A. Dec. 21, 2010), aff’g, No. A089 250 390 (Immig. Ct.

N.Y. City Feb. 25, 2009).    We assume the parties’

familiarity with the underlying facts and procedural history

of the case.

    We have reviewed the IJ’s decision as supplemented by

the BIA’s decision.     See Yan Chen v. Gonzales, 417 F.3d 268,

271 (2d Cir. 2005).    The applicable standards of review are

well-established.     See 8 U.S.C. § 1252(b)(4); Yanqin Weng v.

Holder, 562 F.3d 510, 513 (2d Cir. 2009).

    Title 8, Section 1158(a)(3) of the United States Code

provides that no court shall have jurisdiction to review the


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agency’s finding that an asylum application was untimely

under 8 U.S.C. § 1158(a)(2)(B), or its finding that there

were neither changed nor extraordinary circumstances

excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D).

While we retain jurisdiction under 8 U.S.C. § 1252(a)(2)(D)

to review constitutional claims and questions of law, Yan

has challenged only the agency’s factual determination that

he failed to demonstrate changed or extraordinary

circumstances relating to his eligibility for asylum.

Accordingly, we lack jurisdiction to review the denial of

asylum.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

315, 329-31 (2d Cir. 2006) (holding that “we remain deprived

of jurisdiction to review decisions under the INA when the

petition for review essentially disputes the correctness of

an IJ’s fact-finding . . . and raises neither a

constitutional claim nor a question of law”).

    As to the denial of withholding of removal, substantial

evidence supports the agency’s adverse credibility

determination.   The IJ reasonably found that several aspects

of Yan’s testimony were implausible.   See Xiu Xia Lin v.

Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (holding that we

“defer . . . to an IJ’s credibility determination unless,


                              3
from the totality of the circumstances, it is plain that no

reasonable fact-finder could make such an adverse

credibility ruling”); Wensheng Yan v. Mukasey, 509 F.3d 63,

67 (2d Cir. 2007) (per curiam) (holding that we will not

disturb an IJ’s implausibility finding where it is “tethered

to record evidence, and there is nothing else in the record

from which a firm conviction of error could properly be

derived”).   There is no merit to Yan’s contention that the

adverse credibility determination was unsupported because

the Government failed to discredit his claims, as he bore

the burden of proving his entitlement to relief.     See 8

U.S.C. § 1231(b)(3)(C); 8 U.S.C. § 1158(b)(1)(B).     Because

the agency found that Yan’s testimony that he had been

persecuted due to his religious activities in China was not

credible, its adverse credibility determination foreclosed

any argument that Yan could benefit from a presumption of a

future threat of persecution based on past persecution.        8

C.F.R. § 1208.16(b)(1).

    Further, the agency reasonably found that he had failed

to demonstrate that his religious and political activities

in the United States would likely result in future

persecution in China.     Although the IJ found that Yan had


                                4
testified credibly about his involvement in his church and

the pro-democracy movement in the United States, to meet his

burden of establishing a well-founded fear of persecution,

Yan was required to “make some showing that authorities in

[China] are either aware of his activities or likely to

become aware of his activities.”   Hongsheng Leng v. Mukasey,

528 F.3d 135, 143 (2d Cir. 2008) (per curiam).     To show that

the authorities were aware of his activities, Yan submitted

a letter from his wife stating that the police had

questioned her about Yan’s religious beliefs and warned her

that he should end his political involvement.    However, the

IJ determined that this letter was entitled to little

weight, a finding Yan has not challenged on appeal; we

accordingly decline to disturb the IJ’s finding.     See

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

(2d Cir. 2005) (providing that issues not sufficiently

argued in the briefs are considered waived and normally will

not be addressed on appeal).

    Yan presented no other evidence that his activities in

this country would likely subject him to persecution in

China.   In light of the absence of evidence that Chinese

authorities had become aware of Yan’s activities, would


                               5
become aware of his activities, or would subject him to

persecution as a result of these activities, substantial

evidence supports the agency’s denial of withholding of

removal.

    For these same reasons, Yan has also failed to

demonstrate that he is likely to be tortured if removed to

China and is therefore ineligible for relief under the CAT.

See Kone v. Holder, 596 F.3d 141, 147 (2d Cir. 2010).

    Accordingly, the petition for review is DISMISSED in

part and DENIED in part.   As we have completed our review,

any stay of removal that the Court previously granted in

this petition is VACATED, and any pending motion for a stay

of removal in this petition is DISMISSED as moot.    Any

pending request for oral argument in this petition is DENIED

in accordance with Federal Rule of Appellate Procedure

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

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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