08-1100-ag
Yang v. Holder
BIA
Burr, IJ
A096 401 441
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 17 th day of September, two thousand ten.
PRESENT:
GUIDO CALABRESI,
ROBERT A. KATZMANN,
REENA RAGGI,
Circuit Judges.
_____________________________________
_______________________________________
YU FANG YANG,
Petitioner,
v. 08-1100-ag
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Feng Li, Law Office of Fengling Liu,
New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Linda S. Wernery, Assistant
Director; Erica B. Miles, 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.
Yu Fang Yang, a native and citizen of the People’s
Republic of China, seeks review of a February 7, 2008, order
of the BIA, affirming the March 28, 2006, decision of
Immigration Judge (“IJ”) Sarah M. Burr, which denied her
application for asylum, withholding of removal, and relief
under the Convention Against Torture. In re Yu Fang Yang,
No. A096 401 441 (B.I.A. Feb. 7, 2008), aff’g No. A096 401
441 (Immig. Ct. N.Y. City Mar. 28, 2006). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Where, as here, the BIA agreed with the IJ’s conclusion
that Yang was not credible and emphasized particular aspects
of the IJ’s decision, we review both the BIA’s and the IJ’s
opinions. See Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d
Cir. 2006). We review the agency’s factual findings,
including adverse credibility determinations, under the
substantial evidence standard, upholding them if they are
supported by “reasonable, substantial and probative evidence
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in the record.” Yanqin Weng v. Holder, 562 F.3d 510, 513
(2d Cir. 2009) (internal quotation marks omitted); see 8
U.S.C. § 1252(b)(4)(B). Under the REAL ID Act, which
applies in this case, “an IJ may rely on any inconsistency
or omission in making an adverse credibility determination
as long as the ‘totality of the circumstances’ establishes
that an asylum applicant is not credible.” Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
Analyzed under the REAL ID Act, the agency’s adverse
credibility determination is supported by substantial
evidence. In finding Yang not credible, the agency
reasonably relied on the fact that she admitted before the
IJ that she lied under oath during her airport and credible
fear interviews, giving an entirely different account of her
persecution than the account she presented to the IJ. “The
INS may rely on airport statements in judging an asylum
applicant’s credibility if the record of the interview
indicates that it presents an accurate record of the alien’s
statements, and that it was not conducted under coercive or
misleading circumstances.” Ramsameachire v. Ashcroft, 357
F.3d 169, 179-81 (2d Cir. 2004)
Here, the IJ adequately assessed the probative value of
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the credible fear interview, in particular noting that it
was conducted under oath six days after Yang arrived, was
preceded by a full explanation of the purpose of the
interview, and gave her ample opportunity to explain why she
came to the United States. Accordingly, the agency did not
err in relying on the airport and credible fear interviews
in concluding that Yang’s testimony was not credible. See
Yun-Zui Guan v. Gonzales, 432 F.3d 391, 398 (2d Cir. 2005)
(holding that where a petitioner provides two entirely
different accounts of persecution, an IJ must “rely on the
commonsense observation that it is inconsistent for a
petitioner to respond to the same question about the nature
of [her] asylum claim with two entirely different
responses”).
Before the IJ, Yang explained that she lied during her
airport and credible fear interviews because the smuggler
instructed her to do so. Although Yang provided this
explanation, having assessed the probative value of the
credible fear interview, the IJ did not err in finding this
explanation inadequate. See Yun-Zui Guan, 432 F.3d at 396,
397 n.6, 399 n.8 (holding that so long as the IJ
acknowledges and evaluates the petitioner’s explanation for
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the inconsistency, the IJ may rely on the airport interview
in making an adverse credibility finding); Majidi v.
Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that a
petitioner must do more than offer a plausible explanation
for her inconsistent statements to secure relief; she “must
demonstrate that a reasonable fact-finder would be compelled
to credit [her] testimony”) (internal quotation marks
omitted).
Because the agency’s adverse credibility determination,
based on Yang’s admission that she lied during her airport
and credible fear interviews, was not in error, we need not
reach the balance of the IJ’s credibility findings. See
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d
Cir. 2006). Further, because the agency’s adverse
credibility determination is supported by substantial
evidence, Yang did not establish that she suffered past
persecution, and is not entitled to a rebuttable presumption
of future persecution. See 8 C.F.R. §§ 208.13(b)(1),
1208.16(b)(1). As Yang’s application for asylum and
withholding of removal shared the same factual predicate,
the agency’s adverse credibility determination was fatal to
both of those claims as well. See Paul v. Gonzales, 444
F.3d 148, 156 (2d Cir. 2006).
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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
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