Shu Tian Sun v. Holder

09-4924-ag Sun v. Holder BIA Gordon-Uruakpa, IJ A094 925 170 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 29 th day of December, two thousand ten. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 PETER W. HALL, 9 DENNY CHIN, 10 Circuit Judges. 11 _______________________________________ 12 13 SHUTIAN SUN, 14 Petitioner, 15 16 v. 09-4924-ag 17 NAC 18 ERIC H. HOLDER, JR., U.S. ATTORNEY 19 GENERAL, 20 Respondent. 21 ______________________________________ 22 23 FOR PETITIONER: Gerald Karikari, New York, New York. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General; John C. Cunningham, Senior 27 Litigation Counsel; Briena L. 28 Strippoli, Trial Attorney, Office of 29 Immigration Litigation, U.S. 30 Department of Justice, Washington 31 D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Shu Tian Sun, a native and citizen of the 6 People’s Republic of China, seeks review of the October 26, 7 2009, order of the BIA affirming the May 29, 2008, decision 8 of Immigration Judge (“IJ”) Vivienne Gordon-Uruakpa denying 9 his application for asylum, withholding of removal, and 10 relief under the Convention Against Torture (“CAT”). In re 11 Shutian Sun, No. A094 925 170 (B.I.A. Oct. 26, 2009), aff’g 12 No. A094 925 170 (Immig. Ct. N.Y. City May 29, 2008). We 13 assume the parties’ familiarity with the underlying facts 14 and procedural history in this case. 15 Under the circumstances of this case, we review the 16 IJ’s decision as supplemented by the BIA. See Yun-Zui Guan 17 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The 18 applicable standards of review are well-established. See 8 19 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 20 (2d Cir. 2008); Ramsameachire v. Ashcroft, 357 F.3d 169, 21 178-79 (2d Cir. 2004). 2 1 The agency’s adverse credibility determination is based 2 on substantial evidence given the omissions in Sun’s 3 statements during his Border Patrol and credible fear 4 interviews. See Ming Zhang v. Holder, 585 F.3d 715, 725 (2d 5 Cir. 2009); Ramsameachire, 357 F.3d at 180-81. Contrary to 6 Sun’s contention on appeal, it was not unreasonable for the 7 IJ to rely on omissions in his Border Patrol and credible 8 fear interviews, as the record shows that those interviews 9 and the statements made therein are sufficiently reliable. 10 The answers given during both interviews were recorded in 11 typed documents, interviewers questioned Sun about his 12 claimed fear of persecution and any harm he had suffered in 13 China, and a Mandarin interpreter was provided. We have 14 held that reliance on interviews similar to Sun’s is 15 reasonable. See Ming Zhang, 585 F.3d at 724-25; 16 Ramsameachire, 357 F. 3d at 180-81. 17 Because the interviews were sufficiently reliable, the 18 agency did not err in relying on inconsistencies between 19 statements made during those interviews and Sun’s subsequent 20 asylum application and merits hearing testimony. As the IJ 21 pointed out, Sun claimed in his application and at his 22 hearing that he fled China on account of his involvement 3 1 with Falun Gong, but he did not mention any Falun Gong 2 involvement during his Border Patrol interview. Sun also 3 alleged in his application and hearing that he was arrested 4 and beaten for supporting Falun Gong, but he failed to 5 mention those facts during either of the initial interviews, 6 instead stating only that a friend of his was arrested and 7 beaten. See 8 U.S.C. § 1158(b)(1)(B)(iii) (listing “the 8 consistency between the applicant’s . . . written and oral 9 statements” as a factor in the IJ’s credibility finding); 10 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) 11 (same). Further, the agency’s decision not to give weight 12 to the two letters Sun submitted as corroborating evidence 13 was reasonable. As distinguished from the decision of 14 whether to consider evidence at all, the weight afforded to 15 the applicant’s evidence in immigration proceedings lies 16 largely within the discretion of the IJ. See Xiao Ji Chen 17 v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006). 18 To the extent Sun claims a well-founded fear of 19 persecution based on his stated practice of Falun Gong in 20 the United States, Sun did not sufficiently challenge the 21 agency’s denial of this claim in his brief to this court. 22 Sun only asserted that he practiced Falun Gong in the United 4 1 States, without raising any arguments against the agency’s 2 finding that he failed to present sufficient credible 3 evidence of such practice. See Yueqing Zhang v. Gonzales, 4 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005). Finally, we 5 lack jurisdiction to consider Sun’s CAT claim as he did not 6 raise it before the BIA. See Karaj v. Gonzales, 462 F.3d 7 113, 119 (2d Cir. 2006). 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 5