         12-3142
         Zhu v. Holder
                                                                                       BIA
                                                                                 Zagzoug, IJ
                                                                               A099 488 506
                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 1st day of November, two thousand thirteen.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                GUIDO CALABRESI,
 9                PETER W. HALL,
10                     Circuit Judges.
11       _____________________________________
12
13       ZAI CHENG ZHU,
14                Petitioner,
15
16                       v.                                     12-3142
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Oleh R. Tustaniwsky, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Richard M. Evans,
28                                     Assistant Director; Christina Bechak
29                                     Parascandola, Trial Attorney, Office
30                                     of Immigration Litigation, United
31                                     States Department of Justice,
32                                     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 Zai Cheng Zhu, a native and citizen of

 6   China, seeks review of a July 20, 2012, decision of the BIA

 7   affirming a January 18, 2011, decision of Immigration Judge

 8   (“IJ”) Randa Zagzoug, denying Zhu’s application for asylum,

 9   withholding of removal and relief under the Convention

10   Against Torture (“CAT”).   In re Zai Cheng Zhu, No. A099 488

11   506 (B.I.A. July 20, 2012), aff’g No. A099 488 506 (Immig.

12   Ct. N.Y. City July 20, 2012).       We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we review the

16   decisions of both the IJ and the BIA.       See Ming Xia Chen v.

17   BIA, 435 F.3d 141, 144 (2d Cir. 2006).      The applicable

18   standards of review are well-established. See 8 U.S.C.

19   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

20   (2d Cir. 2009).

21       Because, in his brief, Zhu explicitly abandons any

22   challenge to the denial of asylum and CAT relief, the only

23   issue before the Court is the agency's denial of withholding

                                     2
 1   of removal.    Zhu argues that he is entitled to withholding

 2   of removal based on his “other resistance” to China’s family

 3   planning policy.    See Shi Liang Lin v. U.S. Dep’t of

 4   Justice, 494 F.3d 296, 309 (2d Cir. 2007).     However, because

 5   the Government correctly asserts that Zhu failed to exhaust

 6   this argument before the BIA, we will not consider it. See

 7   Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 118–20 (2d

 8   Cir.2007).    Notably, Zhu does not address his failure to

 9   exhaust this issue or suggest any reason that the Court

10   should review his arguments, despite having not raised them

11   before the BIA.

12       Zhu's other asserted grounds for withholding of removal

13   – his opposition to corruption in China and his political

14   activities in the United States – were raised in his appeal

15   to the BIA.    The Government correctly argues, however, that,

16   before the BIA, Zhu contended only that he had met his

17   burden of proof, but did not challenge the IJ's findings

18   that his testimony was not credible and that he had failed

19   to provide corroborating evidence.    Therefore, we will not

20   consider Zhu’s challenges to these findings.     See id.

21       As the determinations that Zhu was not credible and had

22   failed to provide corroborating evidence were dispositive of


                                    3
 1   his claim for withholding of removal, see Chuilu Liu v.

 2   Holder, 575 F.3d 193, 195 n.5 (2009) (noting that “a failure

 3   to corroborate can suffice, without more, to support a

 4   finding that an alien has not met his burden of proof”);

 5   Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (finding

 6   that “where a withholding claim is based on the very fact,

 7   or set of facts, that the IJ found not to be credible . . .

 8   an adverse credibility ruling will . . . preclude the

 9   withholding claim”), and we “must decline to consider” these

10   unexhausted issues, Lin Zhong, 480 F.3d at 107 n.1, the

11   petition for review is denied.    See Balachova v. Mukasey,

12   547 F.3d 374, 380 (2d Cir. 2008) (granting Government's

13   motion to dismiss petition for review where the petitioner

14   did not exhaust challenge to adverse credibility

15   determination that was dispositive of all claims).

16       For the foregoing reasons, the petition for review is

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

18   removal that the Court previously granted in this petition

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

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

21   oral argument in this petition is DENIED in accordance with




                                   4
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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