BIA

A95-476-178

Ada m Opaciuch, IJ

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER

AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY

OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR

IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 20th

day of March, two thousand and six.

PRESENT:

HON. RICHARD J. CARDAMONE,

HON . REENA RAGGI,

HON . PETER W. HALL,

Circuit Judges.

Ben Hai Dai,

Petitioner,

No. 04-5385-ag

-v.-

NAC

Alberto R. Gonzales,1 Attorney General,

Respondent.

FOR PETITIONER: Bing Li, Esq., Bayside, New York.

FOR RESPONDENT: Patrick J. Fitzgerald, Esq., United States Attorney, Northern

District of Illinois, George Jackson III, Assistant United States

Attorney, Chicago, Illinois.

P u r s u a n t to Federal Rule of A p p e l l a t e Procedure 43(c)(2), Attorney G e n e r a l Alberto R. Gonzales is

a u t o m a t i c a l l y sub s t i t u t e d for former Atto r n e y G e n e r a l John Ashcroft as respondent in this case .

UPON DUE CONSIDERATION of this petition for review of the order of the Board of Immigration Appeals ("BIA"), IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the petition for review is DENIED.

Petitioner Ben Hai Dai petitions for review of an order of the BIA affirming the decision of an Immigration Judge ("IJ") ordering his removal to China and denying his applications for asylum, withholding of removal, and CAT relief. This Court reviews the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard.

See 8U.S.C. § 1252(b)(4)(B); Jin Hui Gao v. United States Att'y Gen., 400 F.3d 963, 964 (2d Cir. 2005); Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir. 2004); Ramsameachire v. Ashcroft, 357 F.3d 169, 177 (2d Cir. 2004); Secaida-Rosales v. INS, 331 F.3d 297, 308-09 (2d Cir. 2003); Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000). We assume the parties' familiarity with the facts and procedural history of the case.

Upon due consideration, it is ORDERED that the petition for review is hereby DENIED because the IJ's finding that Dai had failed to meet his burden of proof was supported by substantial evidence. Dai gave conflicting testimony regarding: (1) the total number of people who had been arrested in the park; and (2) the number of elderly people who had not been arrested ­ first, by stating in his asylum application that nine people had not been arrested, then, upon direct examination, by saying that only an "[o]ld fellow, old man," had avoided arrest, and finally, on cross-examination, by stating, again, that the officials had not arrested nine of the elderly practitioners. The passport Dai used to enter the United States further weakens the credibility of his assertion that he had left China illegally and had been wanted for arrest due to his practice of Falun Gong. The passport Dai entered into evidence bore his real name and his photograph, and had passed inspection by a Chinese official, which provides substantial support for the IJ's inference that the passport was, in fact, genuine, and Dai had left China legally.

Finally, although Dai's mother's letter had corroborated most of Dai's assertions, she had not stated that the authorities had returned to look for Dai after he had left China. This lack of corroboration weakens Dai's claim that he is wanted for arrest, and that he fears future persecution.

Because Dai failed to meet his burden to establish eligibility for asylum, he also failed to meet the heavier burden for withholding of removal. See Ramsameachire, 357 F.3d at 178. Dai failed to appeal the IJ's denial of CAT relief to either the BIA or this Court, and that issue is, therefore, waived. See United States v. Babwah, 972 F.2d 30, 34 (2d Cir. 1992).

Having completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DENIED as moot. Any 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).

FOR THE COURT: Roseann B. MacKechnie, Clerk By: