12-2151
Ye v. Holder
BIA
Cheng, IJ
A089 845 763
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 18th day of July, two thousand thirteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 PIERRE N. LEVAL,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _____________________________________
12
13 LEI YE,
14 Petitioner,
15
16 v. 12-2151
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Yee Ling Poon; Robert Duk-Hwan Kim,
24 Law Office of Yee Ling Poon, LLC,
25 New York, New York.
26
27 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
28 Assistant Attorney General; Ernesto
29 H. Molina, Jr., Assistant Director;
1 Andrew N. O’Malley, Trial Attorney,
2 Office of Immigration Litigation,
3 U.S. Department of Justice,
4 Washington D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Lei Ye, a native and citizen of the People’s
11 Republic of China, seeks review of an April 27, 2012,
12 decision of the BIA, affirming the February 7, 2011,
13 decision of Immigration Judge (“IJ”) Mary Cheng, denying
14 Ye’s application for asylum, withholding of removal, and
15 relief under the Convention Against Torture (“CAT”). In re
16 Lei Ye, No. A089 845 763 (B.I.A. Apr. 27, 2012), aff’g No.
17 A089 845 763 (Immig. Ct. N.Y. City Feb. 7, 2011). We assume
18 the parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 Under the circumstances of this case, we have reviewed
21 the IJ’s decision as modified and supplemented by the BIA.
22 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
23 522 (2d Cir. 2005); see also See Yan Chen v. Gonzales, 417
24 F.3d 268, 271 (2d Cir. 2005); Lin Zhong v. U.S. Dep’t of
25 Justice, 480 F.3d 104, 107 n.1, 122 (2d Cir. 2007). The
2
1 applicable standards of review are well-established. See
2 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,
3 534 F.3d 162, 165-66 (2d Cir. 2008); Li Yong Cao v. U.S.
4 Dep’t of Justice, 421 F.3d 149, 156-57 (2d Cir. 2005).
5 For asylum applications governed by the REAL ID Act,
6 such as the application in this case, the agency may,
7 considering the totality of the circumstances, base a
8 credibility finding on an asylum applicant’s demeanor and
9 inconsistencies in her statements and other record evidence,
10 without regard to whether they go “to the heart of the
11 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
12 Lin, 534 F.3d at 163-64. Substantial evidence supports the
13 agency’s adverse credibility determination.
14 In finding Ye not credible, the IJ reasonably relied on
15 Ye’s demeanor, noting that her testimony was unresponsive,
16 evasive, and rehearsed. See 8 U.S.C. § 1158(b)(1)(B)(iii);
17 see also Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir.
18 2005). That finding is supported by the hearing transcript.
19 The IJ’s adverse credibility determination is further
20 supported by specific examples of contradictory testimony.
21 See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109
22 (2d Cir. 2006) (“We can be still more confident in our
3
1 review of observations about an applicant’s demeanor where,
2 as here, they are supported by specific examples of
3 inconsistent testimony.”). Indeed, the IJ reasonably found
4 discrepancies in Ye’s testimony regarding certain pertinent
5 dates and her knowledge of the dangers of distributing Falun
6 Gong materials in China. See Xiu Xia Lin, 534 F.3d at 163-
7 64. Ye failed to provide compelling explanations for these
8 discrepancies. See Majidi, 430 F.3d at 80-81.
9 Thus, given the IJ’s demeanor finding and the record
10 discrepancies, we find the IJ’s adverse credibility
11 determination supported by substantial evidence. See
12 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534
13 F.3d at 163-64. Because the IJ’s adverse credibility
14 determination related to both Ye’s claim of past persecution
15 and her claim of a well-founded fear of future persecution,
16 that determination was dispositive of her applications for
17 asylum, withholding of removal, and CAT relief and we need
18 not consider the agency’s alternative burden of proof
19 findings. See Paul v. Gonzales, 444 F.3d 148, 155-57 (2d
20 Cir. 2006).
21 Finally, the BIA did not err by declining to consider
22 Ye’s new evidence on appeal because she failed to file a
23 motion to remand or provide any argument as to why the new
4
1 evidence presented would alter the result in her case. See
2 8 C.F.R. § 1003.1(d)(3)(iv) (requiring a party asserting
3 that the BIA cannot properly resolve an appeal without
4 further fact-finding to file a motion to remand); see also
5 Matter of Fedorenko, 19 I. & N. Dec. 57, 74 (B.I.A. 1984)
6 (recognizing that, as an appellate body, the BIA may not
7 review evidence proffered for the first time on appeal).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
5