11-3538
Ye v. Holder
BIA
Cheng, IJ
A087 550 580
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
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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
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 9th day of September, two thousand thirteen.
PRESENT:
JON O. NEWMAN,
ROSEMARY S. POOLER,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
PENG CHENG YE,
Petitioner,
v. 11-3538
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gang Zhou, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Douglas E.
Ginsburg, Assistant Director; Julie
S. Saltman, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Peng Cheng Ye, a native and citizen of the People’s
Republic of China, seeks review of an August 5, 2011,
decision of the BIA affirming the May 4, 2010, decision of
Immigration Judge (“IJ”) Mary Cheng, which pretermitted his
application for asylum and denied his application for
withholding of removal and relief under the Convention
Against Torture (“CAT”). In re Peng Cheng Ye, No. A087 550
580 (B.I.A. Aug. 5, 2011), aff’g No. A087 550 580 (Immig.
Ct. N.Y. City May 4, 2010). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
the decision of the IJ as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
As a preliminary matter, Ye concedes that this Court
lacks jurisdiction to review the pretermission of his asylum
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application unless he raises a colorable constitutional
claim or question of law. He has failed to do so.
Ye argues that the IJ erred by applying a higher burden
than the required “clear and convincing evidence” standard
in determining whether he had demonstrated that he had
timely filed his asylum application within one year after
his entry to the United States. However, the IJ both
explicitly stated that she applied the “clear and
convincing” standard, and, in practical terms, did not
require evidence in excess of that burden. Instead, the IJ
found that Ye’s evidence was insufficient as it was both
internally inconsistent and inconsistent with his witness’s
testimony and his medical documentation. See 8 U.S.C.
§ 1158(a)(2)(B) (requiring that an alien establish by clear
and convincing evidence the timely filing of his asylum
application). Because there is no indication that the IJ
applied an overly stringent standard, Ye has not asserted a
colorable constitutional claim or question of law regarding
the pretermission of asylum and we consider only the
agency’s denial of withholding of removal and CAT relief.
See 8 U.S.C. §§ 1158(a)(2)(B), (3), 1252(a)(2)(D).
3
For applications such as Ye’s, governed by the
amendments made to the Immigration and Nationality Act by
the REAL ID Act of 2005, the agency may, considering the
totality of the circumstances, base a credibility finding on
the applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his account, and inconsistencies in his
statements, without regard to whether they go “to the heart
of the applicant’s claim.” See 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We will “defer
to an IJ’s credibility determination unless, from the
totality of the circumstances, it is plain that no
reasonable fact-finder could make” such a ruling. Xiu Xia
Lin, 534 F.3d at 167. The IJ’s adverse credibility
determination is supported by substantial evidence.
The IJ reasonably based her credibility finding on
inconsistent testimony, including the following: (1) Ye’s
changing testimony regarding (a) whether his wife was at
home or at the family planning office on the day she
underwent an IUD insertion, (b) whether he or his wife had
paid the fine he incurred for fleeing China in 1999, and
(c) whether his wife had worked in a factory; (2) Ye’s
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testimony that he lived at the address listed in his
application since 1975, when the application listed him
living at the address only since 2000; (3) Ye’s testimony
that he had worked as a truck driver in China for one month,
though his application listed that employment as lasting
four years; and (4) Ye’s testimony that he had visited the
Fuzhou Economy and Technology Hospital in April 2009, though
his medical documents identified the institution as Mawei
Hospital. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),
1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167 (providing that
an IJ may support an adverse credibility determination with
“any inconsistency or omission”). The IJ was not required
to credit Ye’s explanations for these inconsistencies. See
Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).1 In
addition, the adverse credibility determination is further
supported by the IJ’s demeanor finding based on Ye’s non-
responsive and vague testimony. See Li Hua Lin v. U.S.
Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).
1
We do not rely on the trivial inconsistencies
between Ye’s testimony that Chinese family planning
officials forced his wife to have an abortion on May 18,
1998, and his wife’s letter, stating, several years after
the fact, that the date was May 27, 1998, or between Ye’s
testimony that he called his cousin twice on April 20,
2009, and his cousin’s testimony that he called once on
that date.
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Given these inconsistencies and the negative demeanor
finding, the totality of the circumstances supports the
agency’s adverse credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because
the only evidence of a threat to Ye’s life or freedom
depended upon his credibility, the adverse credibility
determination in this case necessarily precludes success on
his claims for both withholding of removal and CAT relief.
See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have 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 DISMISSED 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 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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