624 F. App'x 54

CUI HE, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent.

No. 13-2308.

United States Court of Appeals, Second Circuit.

Dec. 15, 2015.

G. Victoria Calle, New York, NY, for Petitioner.

Stuart F. Delery, Assistant Attorney General; Douglas E. Ginsburg, Assistant Director; Nicole R. Prairie, Trial Attorney, Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington D.C., for Respondent.

PRESENT: JOSÉ A. CABRANES, PETER W. HALL, and GERARD E. LYNCH, Circuit Judges.

SUMMARY ORDER

Petitioner Cui He, a native and citizen of China, seeks review of a May 21, 2013 decision of the BIA affirming an November 22, 2011 decision of an Immigration Judge (“IJ”) denying He’s application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). In re Cui He, No. [ AXXX XXX XXX ] (B.I.A. May 21, 2013), ajfg No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Nov. 22, 2011). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we have considered both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009).

The agency found that He failed to demonstrate past persecution. He’s petition for review does not challenge that finding; *55the single sentence in the argument summary of her brief is inadequate to present the claim to this Court. So, to be eligible for relief, He needed to make an independent showing that she would be subjected to harm upon her return to China. 8 C.F.R. § 1208.13(b). She could do so by demonstrating either that she would be singled out for persecution or that there existed a pattern or practice of persecution of those similarly situated to her, i.e., members of underground Christian churches. 8 C.F.R. § 1208.13(b)(2).

He’s brief to the BIA disavowed any claim that she would be singled out. Instead, she claimed that the background evidence (which she did not submit to the IJ) established a pattern or practice of persecution. In her petition for review, however, He has taken the opposite tack, positing that her credible testimony demonstrated that she will be singled out for persecution, and that she need not prove a pattern or practice of persecution.

“Judicially-imposed doctrines of issue exhaustion ... will usually mean that issues not raised to the BIA will not be examined by the reviewing court,” even absent an argument from the government. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir.2007). Given the record here, He failed to exhaust her claim that she will be singled out for persecution, and so we do not consider it.

Although He does not argue that China has a pattern or practice of persecuting Christians, she contends that the agency abused its discretion in declining to consider the background evidence she submitted on appeal to the BIA, which would have supported a pattern or practice claim. The BIA may take administrative notice of country' condition reports; but it is not obligated to do so. 8 C.F.R. § 1003.1(d)(3)(iv); Hoxhallari v. Gonzales, 468 F.3d 179, 186 n. 5 (2d Cir.2006) (per curiam) (recognizing the permissive nature of the BIA’s authority to “exercise independent discretion” in taking notice of commonly known facts). Moreover, He fails to identify any particular articles or reports that would support a pattern or practice claim.

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.

Cui He v. Lynch
624 F. App'x 54

Case Details

Name
Cui He v. Lynch
Decision Date
Dec 15, 2015
Citations

624 F. App'x 54

Jurisdiction
United States

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!