08-1383-ag
Wu v. Holder
BIA
Hom, IJ
A 079 424 902
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 30 th day of April, two thousand ten.
PRESENT:
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
XIU QING WU,
Petitioner,
v. 08-1383-ag
NAC
ERIC H. HOLDER, JR., 1 U.S. ATTORNEY
GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Gary J. Yerman, New York, N.Y.
FOR RESPONDENT: Gregory G. Katsas, Assistant
Attorney General; Anh-Thu P. Mai-
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
Windle, Senior Litigation Counsel;
Julie M. Iversen, Trial Attorney,
Office of Immigration Litigation,
Washington DC
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.
Petitioner Xiu Qing Wu, a native and citizen of the
People’s Republic of China, seeks review of the March 5,
2008 order of the BIA affirming the December 9, 2004
decision of Immigration Judge (“IJ”) Sandy K. Hom denying
her application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Xiu Qing Wu, No. A 079 424 902 (B.I.A. Mar. 5, 2008), aff’g
No. A 079 424 902 (Immig. Ct. N.Y. City Dec. 9, 2004). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we review both
the IJ’s and the BIA’s decisions. 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); Yanqin Weng v. Holder, 562 F.3d 510, 513
2
(2d Cir. 2009).
Substantial evidence supports the agency’s adverse
credibility determination with respect to Wu’s past
persecution claim. Contrary to Wu’s argument, the IJ
reasonably relied on the record of her airport interview in
finding that her statement at the interview that she left
China on March 13, 2001, conflicted with her testimony that
she underwent an abortion in October 2001 and left China in
November 2001. See Ramsameachire v. Ashcroft, 357 F.3d 169,
179 (2d Cir. 2004) (setting forth factors to consider in
basing an adverse credibility finding on the record of an
alien’s airport interview). The record of the airport
interview includes a verbatim transcript of the questions
asked and Wu’s responses, the questions were clearly
designed to elicit details regarding Wu’s asylum claim, and
Wu indicated that she fully understood the Chinese
translation and the questions posed by the immigration
officer. Furthermore, the IJ was not compelled to accept
Wu’s explanation that she was nervous, that the interpreter
made mistakes, and that she had difficulty hearing the
interpreter. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005) (holding that the agency need not credit an
3
applicant’s explanations for inconsistent testimony unless
those explanations would compel a reasonable fact-finder to
do so). As the IJ noted, Wu provided “correct and
recordable answers” to all of the other questions “without
any major difficulty or distortions,” and the record showed
that she “read the questions and answers and made
corrections where appropriate,” as evidenced by her
signature near each change to the transcript.
The IJ also reasonably found that: (1) Wu’s statement
in her asylum application that birth control officials
called her workplace on September 5, 2001, and instructed
her to have an abortion conflicted with her testimony that
she did not discover the pregnancy until September 13, 2001;
and (2) her testimony that she returned to work on September
12, 2001, following her abortion conflicted with her
testimony that the abortion took place in October 2001.
Although Wu argues that these inconsistencies are too minor
to form the basis for an adverse credibility determination,
to the extent they concerned her alleged forced abortion,
they were central to her claim. See Jin Yu Lin v. U.S.
Dep’t of Justice, 413 F.3d 188, 190 (2d Cir. 2005)
(upholding adverse credibility determination where
4
petitioner was “unable to provide a coherent chronological
account of her personal history”). Because Wu’s past
persecution claim depended upon her credibility, the adverse
credibility determination in this case necessarily precludes
success on her claim for asylum and withholding of removal.
See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Wu
Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003). Wu also
waived any challenge to the IJ’s denial of her application
for CAT relief on that basis by not sufficiently arguing the
issue in her brief. See Yueqing Zhang v. Gonzales, 426 F.3d
540, 541 n.1, 545 n.7 (2d Cir. 2005).
With respect to Wu’s claim that she has a well-founded
fear of future persecution on account of the birth of her
two U.S. citizen children, we have previously reviewed the
agency’s consideration of evidence similar to that which Wu
submitted and have found no error in its conclusion that
such evidence is insufficient to establish an alien’s prima
facie eligibility for relief. See Jian Hui Shao v. Mukasey,
546 F.3d 138, 169-72 (2d Cir. 2008); see also Wei Guang Wang
v. BIA, 437 F.3d 270, 275 (2d Cir. 2006). In her brief, Wu
points to no additional evidence that the agency failed to
consider that would render her claim distinguishable.
5
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6