Ying Jin Piao v. Holder

11-3600
Piao v. Holder
BIA
Horn, IJ
A089 262 869

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 12th day of July, two thousand thirteen.
5
6
7 PRESENT:
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 YING JIN PIAO,
15 Petitioner,
16
17 v. 11-3600
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Brian P. Fredericks, Flushing, New
25 York.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; Carl H. McIntyre,
 1 Jr., Assistant Director; Francis W.
2 Fraser, Senior Litigation Counsel,
3 Office of Immigration Litigation,
4 United States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a

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

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

10 is DENIED.

11 Ying Jin Piao, a native and citizen of the People’s

12 Republic of China, seeks review of an August 11, 2011,

13 decision of the BIA affirming the November 25, 2009,

14 decision of an Immigration Judge (“IJ”), which denied her

15 application for asylum, withholding of removal, and relief

16 under the Convention Against Torture (“CAT”). In re Ying

17 Jin Piao, No. A089 262 869 (B.I.A. Aug. 11, 2011), aff’g No.

18 A089 262 869 (Immig. Ct. N.Y. City Nov. 25, 2009). We

19 assume the parties’ familiarity with the underlying facts

20 and procedural history in this case.

21 Under the circumstances of this case, we review the

22 IJ’s decision as modified by the BIA’s decision. See Xue

23 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

24 Cir. 2005). The applicable standards of review are well

25 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

26 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

2
 1 For asylum applications such as Piao’s, which are

2 governed by the amendments made to the Immigration and

3 Nationality Act by the REAL ID Act of 2005, the agency may,

4 considering the totality of the circumstances, base a

5 credibility finding on the “demeanor, candor, or

6 responsiveness” of the applicant, the “inherent plausibility

7 of the applicant’s . . . account,” or any inconsistency or

8 omission in an asylum applicant’s statements, “without

9 regard to whether an inconsistency, inaccuracy, or falsehood

10 goes to the heart of the applicant’s claim.” 8 U.S.C.

11 § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d

12 162, 165-68 (2d Cir. 2008) (per curiam).

13 The IJ’s adverse credibility determination was based

14 on four grounds: evidentiary inconsistencies, demeanor

15 findings, implausibilities, and lack of corroboration.

16 Although it is true that the IJ erred regarding one

17 evidentiary inconsistency and made some procedural

18 misstatements, the agency’s adverse credibility

19 determination is nevertheless supported by substantial

20 evidence based on the IJ’s findings regarding demeanor,

21 another inconsistency, and an implausibility – findings not

22 infected by error. See Yuanliang Liu v. U.S. Dep’t of

3
 1 Justice, 455 F.3d 106, 110-11 (2d Cir. 2006) (finding

2 substantial evidence supported IJ’s adverse credibility

3 determination, despite IJ errors, because IJ also provided

4 valid grounds for credibility finding).

5 With respect to the two evidentiary inconsistencies

6 cited in the IJ’s decision, because the BIA explicitly

7 rejected the finding that Piao’s testimony contradicted her

8 asylum interview, that finding is not a valid basis for the

9 adverse credibility determination. The IJ also determined,

10 however, that the evidence Piao submitted of her membership

11 in the China Social Democratic Party was inconsistent with a

12 stamp on that document with the name “China Socialist

13 Democrat Party.” Although Piao argues that the difference

14 is “irrelevant” and is outweighed by other objectively

15 reliable evidence, “an IJ may rely on any inconsistency or

16 omission in making an adverse credibility determination as

17 long as the ‘totality of the circumstances’ establishes that

18 an asylum applicant is not credible.” Xiu Xia Lin, 534 F.3d

19 at 167.

20 With respect to Piao’s demeanor, the IJ found that

21 during her merits hearings, she “became very uncomfortable

22 and appeared to be anxious,” she “hesitated” in her response

4
 1 to a question, and she “became fidgety and was very

2 uncomfortable” when asked to explain contradictory evidence.

3 We generally defer to such findings, because the IJ is in

4 the best position to observe demeanor. Majidi v. Gonzales,

5 430 F.3d 77, 80-81 (2d Cir. 2005). Moreover, Piao does not

6 argue that these findings were based on a “misstatement of

7 the facts in the record” that would cause us to decline to

8 defer to the demeanor finding. See Li Zu Guan v. INS, 453

9 F.3d 129, 140 (2d Cir. 2006). Rather, she argues that the

10 demeanor finding is not entitled to deference because the

11 IJ’s errors prejudiced the demeanor ruling. Because the IJ

12 provided alternate, valid grounds for the credibility

13 finding however, Piao failed to demonstrate that she was

14 prejudiced by the IJ’s errors. See Yuanliang Liu, 455 F.3d

15 at 110-11; see also Xiao Ji Chen v. U.S. Dep’t of Justice,

16 471 F.3d 315, 335 (2d Cir. 2006) (“[W]e may affirm an

17 adverse credibility finding even when the IJ’s reasoning is

18 deficient in certain respects, provided that despite any

19 errors – considered in the context of the IJ’s entire

20 analysis – we can state with confidence that the same

21 decision would be made if we were to remand.”).

22 Piao also provides several explanations for her

23 demeanor, including her lack of English language skills and
5
 1 the lack of evidence that she had any involvement in

2 creating the contradictory evidence. However, Piao’s

3 attempt to provide plausible explanations for her demeanor

4 “misapprehends the degree of deference we must afford to the

5 IJ’s credibility findings” because a petitioner “must do

6 more than offer a plausible explanation . . . to secure

7 relief; [s]he must demonstrate that a reasonable fact-finder

8 would be compelled to credit [her] testimony.” Majidi, 430

9 F.3d at 80 (internal quotation marks omitted).

10 The IJ also found Piao’s testimony regarding the

11 preparation of her asylum application to be implausible.

12 Piao acknowledges that her application was prepared in an

13 “unorthodox manner,” but argues that the IJ failed to put

14 her on notice that she had to produce the Korean version of

15 her statement, and failed to provide her an opportunity to

16 explain this implausibility. However, Piao was asked how

17 she copied the Mandarin version of her statement when she

18 cannot write in Chinese, and was also asked why she did not

19 submit the original Korean version to the IJ. Although Piao

20 explained that she was unable to find a Korean translator,

21 the IJ was not required to credit this explanation,

22 especially since Piao acknowledged that she lived in a

23 Korean neighborhood. See Majidi, 430 F.3d at 80.
6
 1 Having called Piao’s credibility into question based on

2 the inconsistency, demeanor, and implausibility, the IJ

3 reasonably relied on Piao’s failure to provide any

4 corroboration for her claim that she was politically active

5 in the United States as further support for the adverse

6 credibility determination. See 8 U.S.C.

7 § 1158(b)(1)(B)(ii); Biao Yang v. Gonzales, 496 F.3d 268,

8 273 (2d Cir. 2007) (per curiam).

9 Given these inconsistency, demeanor, implausibility,

10 and corroboration findings, the totality of the

11 circumstances supports the agency’s adverse credibility

12 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

13 Lin, 534 F.3d at 167. As the adverse credibility

14 determination affects Piao’s assertion of both past harm and

15 future harm, it is dispositive of her claims for asylum,

16 withholding of removal, and CAT relief. See Paul v.

17 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.

18 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

19 For the foregoing reasons, the petition for review is

20 DENIED. As we have completed our review, the pending motion

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

22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24

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