10-693-ag
Ou v. Holder
BIA
Videla, IJ
A200 031 252
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 18th day of April, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 DENNY CHIN,
11 Circuit Judges.
12 ______________________________________
13
14 DONG OU,
15 Petitioner,
16
17 v. 10-693-ag
18 NAC
19 ERIC H. HOLDER, JR.,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Edward J. Cuccia, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Douglas E. Ginsburg,
29 Assistant Director; Judith R.
30 O’Sullivan, Trial Attorney, Office
1 of Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED, that the petition for review
8 is DENIED.
9 Dong Ou, a native and citizen of the People’s Republic
10 of China, seeks review of a January 27, 2010, order of the
11 BIA affirming the March 18, 2008, decision of Immigration
12 Judge (“IJ”) Gabriel C. Videla, denying Ou’s application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Dong Ou No. A200
15 031 252 (B.I.A. Jan. 27, 2010), aff’g No. A200 031 252
16 (Immig. Ct. N.Y. City Mar. 18, 2008). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 Under the circumstances of this case, we review the
20 IJ’s decision including the portions not explicitly
21 discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d
22 391, 394 (2d Cir. 2005). The applicable standards of review
23 are well-established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
24 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); Salimatou
25 Bah v. Mukasey, 529 F.3d 99, 104 (2d Cir. 2008).
2
1 Substantial evidence supports the agency’s adverse
2 credibility determination. See Xiu Xia Lin, 534 F.3d at
3 167. For asylum applications, such as Ou’s, governed by the
4 REAL ID Act of 2005, the agency may, in considering the
5 totality of the circumstances, base a credibility finding on
6 an asylum applicant’s demeanor, the plausibility of his or
7 her account, and inconsistencies in his or her statements,
8 without regard to whether they go “to the heart of the
9 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Here,
10 the IJ found Ou not credible based on: (1) his demeanor and
11 lack of responsiveness to some questions; (2) his
12 implausible testimony that, although family planning
13 officials were looking for him at his parents’ home, he and
14 his wife held a large wedding party there; (3) his claim
15 that he had presented a fine receipt, when, in fact, he had
16 not done so; (4) his omission from his asylum application
17 that his parents had been arrested; and (5) his admission
18 that he had lied to immigration officials about the basis
19 for his asylum claim when he first arrived in the United
20 States.
21 At the outset, Ou challenges only the first four of the
22 agency’s findings. Thus, the agency’s reliance on Ou’s
23 admission that he lied to immigration officials stands as a
3
1 valid basis for the adverse credibility determination. See
2 Shunfu Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir. 2008);
3 see also Yun-Zui Guan v. Gonzales, 432 F.3d 391, 398 (2d
4 Cir. 2005) (finding it reasonable for the agency to base an
5 adverse credibility determination “on the commonsense
6 observation that it is inconsistent for a petitioner to
7 respond to the same question about the nature of his asylum
8 claim with two entirely different responses”).
9 To the extent Ou challenges the agency’s additional
10 findings, the agency’s findings are supported by substantial
11 evidence. First, we defer to the IJ’s assessment that Ou
12 was likely “following a script” because he was non-
13 responsive or often hesitated before answering simple,
14 direct questions. See Majidi v. Gonzales, 430 F.3d 77, 81
15 n.1 (2d Cir. 2005) (noting that “[a] fact-finder who
16 assesses testimony together with witness demeanor” is in the
17 best position to evaluate its credibility). Second, the
18 agency reasonably found implausible Ou’s testimony that he
19 held a large wedding party at his parents’ home while hiding
20 from family planning officials who were looking for him
21 there. Cf. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
22 315, 336 n.16 (2d Cir. 2006) (upholding an implausibility
23 finding as to a petitioner’s claim that she went into hiding
4
1 to avoid officials and yet continued working in a location
2 where the officials were likely to find her).
3 Third, contrary to Ou’s assertions, the IJ reasonably
4 found him not credible based on his inconsistent testimony
5 that he had submitted a “fine receipt” when he had not done
6 so and, indeed, had also testified that he never paid any
7 fine. See 8 U.S.C. § 1158(b)(1)(B)(iii) (noting that
8 credibility findings may be based on inconsistencies in a
9 petitioner’s statements). Finally, the agency reasonably
10 relied on Ou’s omission from his asylum application that his
11 parents had been arrested and reasonably rejected his
12 inconsistent explanations for this omission. See Majidi,
13 430 F.3d at 80-81 (2d Cir. 2005) (providing that the agency
14 need not credit an applicant’s explanations for inconsistent
15 testimony unless those explanations would compel a
16 reasonable fact-finder to do so); see Xiu Xia Lin, 534 F.3d
17 at 166 n.3, 167 (stating that omissions and inconsistencies
18 are functionally equivalent for purposes of an adverse
19 credibility finding).
20 To the extent that all Ou’s claims were based on the
21 same factual predicate, the agency’s adverse credibility
22 determination was a proper basis for denial of his
23 applications for asylum, withholding of removal, and CAT
5
1 relief. See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);
2 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). The
3 agency also reasonably denied Ou’s CAT claim based on his
4 illegal departure from China. See Mu Xiang Lin v. U.S. Dep’t
5 of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005)
6 For the foregoing reasons, the petition for review is
7 DENIED in part and DISMISSED in part. As we have completed
8 our review, any stay of removal that the Court previously
9 granted in this petition is VACATED, and any pending motion
10 for a stay of removal in this petition is DISMISSED as moot.
11 Any pending request for oral argument in this petition is
12 DENIED in accordance with Federal Rule of Appellate
13 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
6