09-3930-ag
Li v. Holder
BIA
Weisel, IJ
A078 746 423
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 6 th day of August, two thousand ten.
5
6 PRESENT:
7 ROGER J. MINER,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 YONG TONG LI
14
15 Petitioner,
16
17 v. 09-3930-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21
22 Respondent.
23 _______________________________________
24
25 FOR PETITIONER: G. Victoria Calle, New York,
26 New York.
27
28 FOR RESPONDENT: John D. Williams, Trial Attorney
29 (Tony West, Assistant Attorney
30 General; Russell J. E. Verby, Senior
31 Litigation Counsel, of counsel),
1 Office of Immigration Litigation,
2 Civil Division, United States
3 Department of Justice, Washington,
4 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 Yong Tong Li, a native and citizen of the
11 People’s Republic of China, seeks review of an August 24,
12 2009 order of the BIA, affirming the November 28, 2007
13 decision of Immigration Judge (“IJ”) Robert D. Weisel,
14 which, following remand from this Court pursuant to the
15 parties’ stipulation, denied Li’s application for asylum,
16 withholding of removal, and relief under the Convention
17 Against Torture (“CAT”). In re Yong Tong Li, No. A078 746
18 423 (B.I.A. Aug. 24, 2009), aff’g Nos. A078 746 423 (Immigr.
19 Ct. N.Y. City Nov. 28, 2007). We assume the parties’
20 familiarity with the underlying facts and procedural history
21 in this case.
22 Under the circumstances of this case, we review the
23 decision of the IJ as supplemented by the order of the BIA,
24 provided that the BIA’s supplemental findings do not extend
25 beyond the scope of its review under 8 C.F.R. §
2
1 1003.1(d)(3)(i), (iv). See Xian Tuan Ye v. DHS, 446 F.3d
2 289, 293, 296 (2d Cir. 2006). The applicable standards of
3 review are well-established. See Salimatou Bah v. Mukasey,
4 529 F.3d 99, 110 (2d Cir. 2008); Shu Wen Sun v. BIA, 510
5 F.3d 377, 379 (2d Cir. 2007).
6 Substantial evidence supports the agency’s adverse
7 credibility determination. See Shu Wen Sun, 510 F.3d at
8 379. In finding Li’s testimony not credible, the agency
9 relied on the fact that his asylum application omitted his
10 alleged mistreatment while in detention in 1999. Because
11 this omission goes to the heart of Li’s claim of past
12 persecution, and is substantial when measured against the
13 record as a whole, the agency did not err in relying on the
14 omission in finding Li not credible. See Secaida-Rosales v.
15 INS, 331 F.3d 297, 308-09 (2d Cir. 2003); see also Xiu Xia
16 Lin v. Mukasey, 534 F.3d 162, 166 n.3 (2d Cir. 2008) (noting
17 that an “omission in a document . . . like a direct
18 inconsistency . . . can serve as a proper basis for an
19 adverse credibility determination”).
20 Contrary to Li’s argument, he was sufficiently on
21 notice to address the omission in his asylum application.
22 Li correctly points out, as the BIA acknowledged, that the
3
1 IJ’s 2002 finding — that Li’s asylum application
2 contradicted his testimony and stated that he was not
3 tortured during his detention — misconstrued Li’s
4 application, because that portion of the application
5 referred to Li’s treatment in detention in the United
6 States. Nonetheless, because the IJ based his adverse
7 credibility determination on the fact that the asylum
8 application did not support Li’s testimony with respect to
9 his treatment in detention, and the parties’ 2007
10 stipulation provided that the issue of Li’s treatment in
11 detention was to be considered on remand, Li’s argument that
12 he was not on notice to address the issue is without merit.
13 Moreover, because this omission concerned the core of Li’s
14 claim, and was “obvious,” the IJ was not required to
15 identify the inconsistency and afford Li an opportunity to
16 address it before relying on it in his decision. See Ming
17 Shi Xue v. BIA, 439 F.3d 111, 120-21 (2d Cir. 2006).
18 Ultimately, because a reasonable fact-finder would not
19 be compelled to conclude to the contrary, the agency’s
20 adverse credibility determination was supported by
21 substantial evidence. See Shu Wen Sun, 510 F.3d at 379.
22 Accordingly, the agency did not err in denying Li’s
4
1 application for asylum and withholding of removal based on
2 its adverse credibility determination insofar as the claims
3 shared the same factual predicate. See Paul v. Gonzales,
4 444 F.3d 148, 156 (2d Cir. 2006). Because the agency’s
5 adverse credibility finding is dispositive of Li’s
6 application for asylum and withholding of removal, we need
7 not address the agency’s alternative burden finding.
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
18
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