Yifeng Shao v. Board of Immigration Appeals
Yifeng Shao v. Board of Immigration Appeals
Opinion of the Court
SUMMARY ORDER
Petitioner Yifeng Shao, a native and citizen of the People’s Republic of China, seeks review of the March 24, 2006 order of the BIA affirming the January 4, 2005 decision of Immigration Judge (“IJ”) Sarah M. Burr, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yifeng Shao, No. A96 389 856 (B.I.A. Mar. 24, 2006), aff'g No. A96 389 856 (Immig. Ct. N.Y. City Jan. 4, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
As an initial matter, although Shao is challenging the denial of relief in “asylum-only” proceedings—as opposed to an actual removal order—we nonetheless have jurisdiction under 8 U.S.C. § 1252(a)(1) because the denial of relief in these circumstances is the functional equivalent of a removal order. See Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir. 2006).
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we review both the BIA’s and IJ’s opinions—or more precisely, we review the IJ’s decision including the portions not explicitly discussed by the BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir. 2007).
We find that the agency’s adverse credibility determination was supported by substantial evidence. The multiple specific examples of discrepancies between Shao’s testimony and the record—e.g., his failure to mention during his airport interviews
In addition, given that Shao bore the burden of demonstrating that he possessed a subjective basis for his fear of persecution, see Ramsameachire, 357 F.3d at 178, the BIA reasonably found that his bald statement that he started practicing Falun Gong subsequent to his merits hearing was insufficient to support a well-founded fear of persecution. Accordingly, the BIA’s denial of asylum and withholding of removal was not improper.
Finally, because Shao failed to challenge the IJ’s denial of his CAT claim in his brief to the BIA, as a statutory matter, we are without jurisdiction to consider any challenge to the denial of that relief. 8 U.S.C. § 1252(d)(1). Accordingly, we dismiss Shao’s petition for review with respect to CAT relief.
For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part. As we have completed our review, Shao’s pending motion for a stay of removal in this petition is DISMISSED as moot. In addition, the 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(d)(1). Finally, Shao’s pending motion for summary reversal of the BIA’s decision is DENIED.
. We agree with the BIA that the airport interview statements were sufficiently reliable to merit consideration in the credibility determination. See Ramsameachire v. Ashcroft, 357 F.3d 169, 179-80 (2d Cir. 2004).
. Because our review is limited to "the administrative record on which the [challenged] order of removal is based,” 8 U.S.C. § 1252(b)(4)(A), we may not consider a medical report discussing an X-ray examination of Shao’s damaged finger, submitted here for the first time.
Reference
- Full Case Name
- YIFENG SHAO v. BOARD OF IMMIGRATION APPEALS
- Status
- Published