         11-2401-ag
         Bai v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A099 084 013
                          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 11th day of October, two thousand twelve.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                ROBERT A. KATZMANN,
 9                BARRINGTON D. PARKER,
10                     Circuit Judges.
11       _____________________________________
12
13       CHUNLAN BAI,
14                Petitioner,
15
16                       v.                                     11-2401-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Lewis G. Hu, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Terri J. Scadron, Assistant
27                                     Director; Genevieve Holm, Trial
28                                     Attorney, Office of Immigration
29                                     Litigation, Civil Division, United
30                                     States Department of Justice,
31                                     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 DISMISSED in part and DENIED in part.

 5       Petitioner Chunlan Bai, a native and citizen of the

 6   People’s Republic of China, seeks review of a May 19, 2011,

 7   order of the BIA affirming the August 25, 2009, decision of

 8   Immigration Judge (“IJ”) Sandy K. Hom denying Bai’s

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).    In re Chunlan

11   Bai, No. A099 084 013 (B.I.A. May 19, 2011), aff’g No. A099

12   084 013 (Immig. Ct. N.Y. City Aug. 25, 2009).    We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in 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

19   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

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

21       As a preliminary matter, under 8 U.S.C. § 1252(d)(1),

22   this Court “may review a final order of removal only if. . .


                                  2
 1   the alien has exhausted all administrative remedies

 2   available to the alien as of right[.]”   This jurisdictional

 3   rule is absolute with respect to the requirement that on

 4   appeal to the BIA the alien must raise each category of

 5   relief subsequently raised in this Court.     See Karaj v.

 6   Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).    Here, Bai

 7   failed to challenge the IJ’s denial of CAT relief in her

 8   appeal to the BIA.   Thus, as a statutory matter, we are

 9   without jurisdiction to consider any challenge to the denial

10   of that relief, and the petition is dismissed to this

11   extent. 8 U.S.C. § 1252(d)(1).

12       As to withholding of removal, the agency reasonably

13   concluded that Bai was not credible based on inconsistencies

14   between her testimony and immigration applications she had

15   filed and her failure to provide evidence corroborating her

16   claims.1   See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing that

17   for asylum applications governed by the REAL ID Act, the

18   agency may, considering the totality of the circumstances,

19   base a credibility finding on an asylum applicant’s

20   “responsiveness” and inconsistencies in her statements


            1
             Bai does not challenge the agency’s denial of
       asylum or its conclusion that she did not provide
       corroborating evidence.
                                   3
 1   without regard to whether they go “to the heart of the

 2   applicant’s claim”).   Bai’s testimony that she was arrested

 3   in 1997 and did not work in China after that arrest was

 4   inconsistent with immigration forms she filed stating that

 5   she was never arrested and that she worked in China as a

 6   chef between 2000 and 2003.

 7       The IJ reasonably rejected Bai’s argument that she did

 8   not consider her 1997 arrest “a real arrest” because she

 9   thought the Chinese authorities were acting illegitimately,

10   as this explanation was not consistent with her claim that

11   she was not responsible for the contents of the immigration

12   forms because they were prepared by an agent, not her.     The

13   IJ was not compelled to accept either of these explanations.

14   See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A

15   petitioner must do more than offer a plausible explanation

16   for his inconsistent statements to secure relief; he must

17   demonstrate that a reasonable fact-finder would be compelled

18   to credit his testimony.” (emphasis in original; quotation

19   marks and citations omitted)).

20       Together, the discrepancies between Bai’s testimony and

21   her immigration applications and her failure to provide

22   evidence corroborating her claims constitute substantial


                                   4
 1   evidence in support of the agency’s adverse credibility

 2   determination.   See 8 U.S.C. § 1158(b)(1)(B)(iii).

 3   Accordingly, the IJ did not err in concluding that Bai did

 4   not establish her eligibility for withholding of removal.

 5   See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.

 6   2004).

 7       For the foregoing reasons, the petition for review is

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

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

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

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

12   Any pending request for oral argument in this petition is

13   DENIED in accordance with Federal Rule of Appellate

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

15                               FOR THE COURT:
16                               Catherine O’Hagan Wolfe, Clerk
17
18




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