         08-5095-ag
         Zhao v. Holder
                                                                                         BIA
                                                                                      Hom, IJ
                                                                                A 090 347 497
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 30 th day of December, two thousand                nine.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSEPH M. McLAUGHLIN,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       _______________________________________
12
13       XIU LI ZHAO,
14                Petitioner,
15
16                        v.                                    08-5095-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., 1 ATTORNEY GENERAL,
19       UNITED STATES DEPARTMENT OF JUSTICE,
20                Respondent.
21       _______________________________________

                      1
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder, Jr., is
             automatically substituted for former Attorney General
             Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONER:        Pro Se.
 2
 3   FOR RESPONDENT:        Tony West, Assistant Attorney
 4                          General; Lyle D. Jentzer, Senior
 5                          Litigation Counsel; Glen T. Jaeger,
 6                          Trial Attorney, Office of
 7                          Immigration Litigation, Civil
 8                          Division, United States Department
 9                          of Justice, Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

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

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

14   is DENIED.

15       Petitioner Xiu Li Zhao, a native and citizen of China,

16   seeks review of the September 18, 2008 order of the BIA

17   affirming the November 20, 2007 decision of Immigration

18   Judge (“IJ”) Sandy Hom denying her application for asylum,

19   withholding of removal, and relief under the Convention

20   Against Torture (“CAT”).   In re Xiu Li Zhao, No. A 090 347

21   497 (B.I.A. Sept. 18, 2008), aff’g No. A 090 347 497 (Immig.

22   Ct. N.Y. City Nov. 20, 2007).       We assume the parties’

23   familiarity with the underlying facts and procedural history

24   in this case.

25       When the BIA “agrees with the IJ’s conclusion that a

26   petitioner is not credible and, without rejecting any of the

27   IJ’s grounds for decision, emphasizes particular aspects of

28   that decision,” we review both the BIA’s and IJ’s opinions –


                                     2
1    “or more precisely, we review the IJ’s decision including

2    the portions not explicitly discussed by the BIA.”        Yun-Zui

3    Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).        We

4    review the agency’s factual findings, including adverse

5    credibility determinations, under the substantial evidence

6    standard.   8 U.S.C. § 1252(b)(4)(B); see also Corovic v.

7    Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).     For asylum

8    applications governed by the amendments made to the

9    Immigration and Nationality Act by the REAL ID Act of 2005,

10   the agency may, considering the totality of the

11   circumstances, base a credibility finding on an asylum

12   applicant’s demeanor, the plausibility of his or her

13   account, and inconsistencies in his or her statements,

14   without regard to whether they go “to the heart of the

15   applicant’s claim.”    8 U.S.C. § 1158(b)(1)(B)(iii).      We

16   “defer to an IJ’s credibility determination unless, from the

17   totality of the circumstances, it is plain that no

18   reasonable fact-finder could make such an adverse

19   credibility ruling.”    Xiu Xia Lin v. Mukasey,   534 F.3d 162,

20   167 (2d Cir. 2008).     We review de novo questions of law and

21   the application of law to undisputed fact.     See Salimatou

22   Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).


                                    3
1        As a preliminary matter, although Zhao did not

2    challenge the IJ’s adverse credibility determination before

3    the BIA, the BIA discussed that determination in its

4    opinion.   If the BIA addresses issues not raised by a

5    petitioner, those issues may be considered exhausted and may

6    be reviewed by this Court.   See Waldron v. INS, 17 F.3d 511,

7    515 n.7 (2d Cir. 1994).   Therefore, Zhao did not fail to

8    exhaust her administrative remedies with respect to the IJ’s

9    adverse credibility determination.

10       In her brief, Zhao does not challenge the IJ’s findings

11   that: (1) her husband’s testimony regarding his involvement

12   with Zhao’s pro-democracy group in China was inconsistent

13   with his written statement; (2) her husband’s demeanor was

14   “quizzical” and that he was “constantly repeating the

15   question that was asked of him;” (3) she was unable to

16   describe the location of a demonstration she allegedly

17   attended in New York City; (4) a witness she presented to

18   testify to her pro-democracy activities in the United States

19   offered inconsistent and contradictory testimony as to

20   Zhao’s membership in the China Freedom and Democracy Party;

21   and (5) she did not mention her involvement with any

22   political group in the United States in her asylum



                                   4
1    application or the attached written statement.    While Zhao’s

2    pro se arguments are construed broadly, see Weixel v. Bd. of

3    Educ., 287 F.3d 138, 145-46 (2d Cir. 2002), she fails to so

4    much as mention any of these findings in her brief.     Thus,

5    she has waived any challenge to these findings, Yueqing

6    Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.

7    2005), and they stand as valid bases for the IJ’s adverse

8    credibility determination. See Shunfu Li v. Mukasey, 529

9    F.3d 141, 146-47 (2d Cir. 2008).

10       Zhao does challenge the IJ’s finding that her oral

11   testimony and written statement were inconsistent because

12   she testified that she had been punched, kicked, and beaten

13   with an electric baton but had not mentioned those details

14   in her written statement.    Zhao argues that, on the

15   contrary, her written statement “was indeed fairly detailed

16   in describing what happened to her in the course of the

17   detention.”   However, this argument does not explain the

18   omissions from her written statement, and the IJ was

19   entitled to rely on them. Regardless, because Zhao fails to

20   raise any challenge to the IJ’s other credibility findings,

21   they provide substantial evidence for the agency’s adverse

22   credibility determination.    See 8 U.S.C. § 1252(b)(4)(B);


                                    5
1    Xiu Xia Lin, 534 F.3d at 167.       Therefore, the IJ did not err

2    in denying Zhao’s application for asylum and withholding of

3    removal because the only evidence that Zhao would be

4    persecuted depended on her credibility.       See Paul v.

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

6        Finally, Zhao did not challenge the IJ’s denial of CAT

7    relief before the BIA.   We are thus without jurisdiction to

8    consider any challenge to that denial of relief.       8 U.S.C.

9    § 1252(d)(1).   Regardless, Zhao does not raise her claim for

10   CAT relief in her brief, and has therefore waived any

11   challenge to the agency’s denial of that claim.       See Yueqing

12   Zhang, 426 F.3d at 541 n.1, 545 n.7.

13       For the foregoing reasons, the petition for review is

14   DENIED.   As we have completed our review, any pending motion

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

16   Any pending request for oral argument in this petition is

17   DENIED in accordance with Federal Rule of Appellate

18   Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
19
20                               FOR THE COURT:
21                               Catherine O’Hagan Wolfe, Clerk
22
23                               By:___________________________




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