12-1202
Yuan v. Holder
BIA
Hom, IJ
A077 810 890
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 7th day of August, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 ZHOUJIN YUAN,
14 Petitioner,
15
16 v. 12-1202
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Nathan Weill, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Stephen J. Flynn,
27 Assistant Director; Imran R. Zaidi,
28 Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Zhoujin Yuan, a native and citizen of The People’s
6 Republic of China, seeks review of a March 13, 2012,
7 decision of the BIA affirming the January 7, 2010, decision
8 of Immigration Judge (“IJ”) Sandy Hom, which denied her
9 application for asylum, withholding of removal and relief
10 under the Convention Against Torture (“CAT”). In re Zhoujin
11 Yuan, No. A077 810 890 (B.I.A. Mar. 13, 2012), aff’g No.
12 A077 810 890 (Immig. Ct. N.Y. City Jan. 7, 2010). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history of this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented and modified by the BIA.
17 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
18 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271
19 (2d Cir. 2005). The applicable standards of review are well
20 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiao Ji
21 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 334-35 (2d Cir.
22 2006). Because Yuan filed her asylum application in 1999,
2
1 the REAL ID Act does not apply in this case. See REAL ID
2 Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302,
3 303 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii));
4 Matter of S-B-, 24 I. & N. Dec. 42, 45 (BIA 2006). A pre-
5 REAL ID Act adverse credibility determination must be based
6 on “specific, cogent” reasons that bear a “legitimate nexus
7 to the finding.” See Secaida-Rosales v. INS, 331 F.3d 297,
8 307 (2d Cir. 2003) (quotation omitted).1 Inconsistent
9 testimony often bears a legitimate nexus to an adverse
10 credibility finding, but it need not be fatal if it is
11 “minor and isolated,” and the testimony is otherwise
12 “generally consistent, rational, and believable.” Diallo v.
13 INS, 232 F.3d 279, 288 (2d Cir. 2000).
14 Substantial evidence supports the agency’s adverse
15 credibility finding as the record reflects a major
16 inconsistency regarding Yuan’s claim that she was forcibly
17 sterilized in China. As the agency found, although Yuan
18 testified before the IJ that her sterilization certificate
19 had been lost and she had never obtained a copy, in fact,
1
Secaida-Rosales has been abrogated in part by the
REAL ID Act, see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167
(2d Cir. 2008)(per curiam), but applies here because the
REAL ID Act does not govern in this case. See Dong Zhong
Zheng v. Mukasey, 552 F.3d 277, 287 n.6 (2d Cir. 2009).
3
1 she had submitted the certificate with her asylum
2 application several years earlier. The agency reasonably
3 declined to credit Yuan’s explanation that she was unaware
4 that the certificate was submitted with her asylum
5 application or alternatively that she did not understand
6 what it said, as the record contains documentation showing
7 that she discussed the certificate in her asylum interview.
8 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
9 Yuan’s argument that the BIA improperly engaged in
10 independent fact-finding and relied on evidence not in the
11 record is not supported by the record–the BIA upheld the
12 same inconsistency finding the IJ made, and contrary to
13 Yuan’s claim, the asylum officer’s assessment summarizing
14 her asylum interview is included in the record.
15 The adverse credibility determination is further
16 bolstered by the agency’s finding that Yuan failed to
17 independently corroborate her claim. See Biao Yang v.
18 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)(per curiam).
19 Yuan’s assertion that the IJ did not make a corroboration
20 finding is again contrary to the record, and her claim that
21 the agency was required to point to specific missing
22 documents before making a corroboration finding applies only
4
1 when the agency denies an otherwise credible applicant on
2 corroboration grounds alone. See, e.g., Jin Shui Qiu v.
3 Ashcroft, 329 F.3d 140, 153 (2d Cir. 2003), overruled on
4 other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494
5 F.3d 296 (2d Cir. 2007)(en banc); see also Biao Yang, 495
6 F.3d at 273.
7 Given the inconsistency in Yuan’s testimony concerning
8 the central component of her asylum claim, her lack of
9 compelling explanation for the inconsistency, and the
10 failure to identify any error in the agency’s corroboration
11 finding, the adverse credibility determination is supported
12 by substantial evidence. As the credibility determination
13 calls into question the credibility of Yuan’s forced
14 sterilization, the findings are sufficiently related to the
15 heart of her claim to satisfy the pre-REAL ID Act
16 requirements for an adverse credibility finding. See
17 Secaida-Rosales, 331 F.3d at 307; Diallo, 232 F.3d at 288.
18 The adverse credibility determination in this case
19 necessarily precludes success as to both asylum and
20 withholding of removal as both claims share the same factual
21 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
22 2006). Yuan does not challenge the denial of CAT relief.
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
6