09-5049-ag
Yang v. Holder
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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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 November, two thousand ten.
PRESENT:
ROGER J. MINER,
JOSEPH M. McLAUGHLIN,
ROBERT A. KATZMANN,
Circuit Judges.
_______________________________________
JIAN XIN YANG,
Petitioner,
v. 09-5049-ag
NAC
ERIC H. HOLDER, JR.,
U.S. ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Edward T. Giuliano, New York, N.Y.
FOR RESPONDENT: Ilissa M. Gould, Trial Attorney,
Office of Immigration Litigation,
for Tony West, Assistant Attorney
General; Leslie McKay, Assistant
Director; 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.
Petitioner Jian Xin Yang, a native and citizen of the
People’s Republic of China, seeks review of a November 19,
2009 order of the BIA affirming the January 18, 2008
decision of Immigration Judge (“IJ”) Noel A. Ferris, denying
his application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Jian Xin Yang, No. A099 532 376 (B.I.A. Nov. 19, 2009),
aff’g No. A099 532 376 (Immig. Ct. N.Y. City Jan. 18, 2008).
We assume the parties’ familiarity with the underlying facts
and procedural history of this case.
On appeal, Yang challenges the IJ’s adverse credibility
determination. He contends that the IJ erred in finding
that his testimony was inconsistent with his asylum
application and that he omitted information from his
application.
“We review the agency’s factual findings, including
adverse credibility determinations, under the substantial
evidence standard, treating them as ‘conclusive unless any
reasonable adjudicator would be compelled to conclude to the
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contrary.’” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d
Cir. 2008)(quoting 8 U.S.C. § 1252(b)(4)(B)). “When
evaluating credibility determinations for substantial
evidence, we afford ‘particular deference’ to the IJ.” Id.
at 165-66 (quoting Zhou Yun Zhang v. INS, 386 F.3d 66, 73
(2d Cir. 2004)). “We must assess whether the IJ has provided
‘specific, cogent reasons for the adverse credibility
finding and whether those reasons bear a legitimate nexus to
the finding.’” Id. (quoting Zhou Yun Zhang, 386 F.3d at 74).
“Where the IJ’s adverse credibility finding is based on
specific examples of inconsistent statements or
contradictory evidence, a reviewing court will generally not
be able to conclude that a reasonable adjudicator was
compelled to find otherwise.” Id. (internal quotation marks
and punctuation omitted). In the circumstances of this
case, we review the IJ’s decision as supplemented by the
BIA’s decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271
(2d Cir. 2005).
In connection with asylum applications governed by the
REAL ID Act, the agency may make a credibility finding based
upon an applicant’s “demeanor, candor, or responsiveness,”
the plausibility of his or her account, and inconsistencies
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in his or her 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); Xiu Xia Lin, 534 F.3d at 167. Here,
we defer to the IJ’s determination that Yang’s
“uncomfortable,” “hesitant,” and “evasive” demeanor
undermined his credibility. See Majidi v. Gonzales, 430
F.3d 77, 81 n.1 (2d Cir. 2005) (explaining that this Court
generally defers to credibility determinations that are
based on an alien’s demeanor and that IJs have “the unique
advantage . . . of having heard directly from the
applicant”); see also Shu Wen Sun v. Bd. of Immigration
Appeals, 510 F.3d 377, 380-81 (2d Cir. 2007).
We likewise find no error in the IJ’s determination
that Yang’s credibility was undermined by his admission that
he lied about his employment history in his asylum
application. 1 See Siewe v. Gonzales, 480 F.3d 160, 170 (2d
Cir. 2007) (finding that once an IJ concludes that a
document is false, he or she is “free to deem suspect other
1
The IJ found also that Yang’s asylum application
was frivolous on the ground that he knowingly made a
false statement therein. Yang, however, fails to
challenge that finding before this Court and,
consequently, we deem any such argument waived. See
Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir.
2005).
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documents (and to disbelieve other testimony) that depend
for probative weight upon [the applicant’s] veracity”).
Moreover, the BIA identified numerous discrepancies in
the record regarding the timing and circumstances of Yang’s
marriage, his wife’s abortion, and his subsequent receipt of
a fine notice and his inability to explain how he and his
wife violated Chinese family planning policy. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Yang
does not contest that these inconsistencies appear in the
record. These discrepancies supported the IJ’s finding that
Yang was not credible. See 8 U.S.C. § 1158(b)(1)(B)(iii);
Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
We conclude that the IJ’s adverse credibility
determination was supported by substantial evidence in view
of her findings regarding Yang’s demeanor, the false
statement in Yang’s asylum application, and numerous
inconsistencies in the record. Because Yang’s asylum,
withholding of removal, and CAT claims share the same
“factual basis,” Paul v. Gonzales, 444 F.3d 148, 156 (2d
Cir. 2006), that determination is dispositive of Yang’s
petition. See id.; Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d 520, 523 (2d Cir. 2005).
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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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