10-1530-ag
Ouyang v. Holder
BIA
Nelson, IJ
A088 377 795
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 19th day of April, two thousand eleven.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 JOSEPH M. McLAUGHLIN,
9 ROBERT A. KATZMANN,
10 Circuit Judges.
11 _______________________________________
12
13 Zongdang Ouyang,
14 Petitioner,
15
16 v. 10-1530-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, NY.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Paul Fiorino, Senior
27 Litigation Counsel; Judith R.
28 O’Sullivan, Trial Attorney, Office
29 of Immigration Litigation, Civil
30 Division, United States Department
of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Zongdang Ouyang, a native and citizen of the
6 People’s Republic of China, seeks review of an April 2,
7 2010, order of the BIA affirming the May 21, 2008, decision
8 of Immigration Judge (“IJ”) Barbara A. Nelson, pretermitting
9 his asylum application and denying his application for
10 withholding of removal and relief under the Convention
11 Against Torture (“CAT”). In re Zongdang Ouyang, No. A088
12 377 795 (B.I.A. Apr. 2, 2010), aff’g No. A088 377 795
13 (Immigr. Ct. N.Y. City May 21, 2008). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history of the case.
16 Under the circumstances of this case, we review the
17 IJ’s decision as modified by the BIA decision. See Xue Hong
18 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
19 2005). The applicable standards of review are well-
20 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia
21 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per
22 curiam); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.
23 2008).
2
1 Substantial evidence supports the IJ’s adverse
2 credibility determination. The IJ’s adverse credibility
3 finding was based on several discrepancies among statements
4 in Ouyang’s written asylum application, testimony, and
5 corroborating evidence. As the IJ found: (1) although
6 Ouyang testified and indicated in his supplementary
7 statement that he had resisted family planning officials
8 each time his wife was forced to have an abortion, he
9 omitted these details from his original asylum application;
10 (2) although Ouyang’s testimony and letters from his sister
11 and his wife indicated that he was detained overnight, he
12 omitted this detail from his asylum application and his
13 supplemental statement; and (3) although Ouyang’s testimony
14 and a letter from his sister indicated that he was injured
15 by a family planning official to such an extent that he
16 required medical treatment, Ouyang omitted this detail from
17 his asylum application and his supplemental statement.
18 Because the IJ was entitled to rely on any discrepancy to
19 find Ouyang not credible, the IJ properly relied on these
20 inconsistencies. See 8 U.S.C. § 1158(b)(1)(B)(iii)
21 (permitting a trier of fact to base a credibility
22 determination on, inter alia, “the consistency between the
23 applicant’s . . . written and oral statements”; see also Xiu
3
1 Xia Lin, 534 F.3d at 166 n.3 (explaining that a “direct
2 inconsistency” in an applicant’s testimony and written
3 submission “can serve as a proper basis for an adverse
4 credibility determination”). Additionally, the IJ did not,
5 contrary to Ouyang’s contention, engage in improper
6 speculation or bias when she noted that Ouyang amended his
7 statements following the issuance of Shi Liang Lin v.
8 Mukasey, 494 F.3d 296 (2d Cir. 2007) (en banc), as that
9 observation was based on specific examples in the record.
10 See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007)
11 (holding that although “bald” speculation is an
12 impermissible basis for an adverse credibility finding,
13 “[t]he speculation that inheres in inference is not bald if
14 the inference is made available to the factfinder by record
15 facts, or even a single fact, viewed in the light of common
16 sense and ordinary experience” (internal quotation marks
17 omitted)).
18 Furthermore, the IJ reasonably declined to credit
19 Ouyang’s explanations that: (1) he failed to mention his
20 overnight detention in his asylum application and
21 supplementary statement because he forgot and because he did
22 not consider the detention to be a “law enforcement agency
4
1 arrest or detention”; (2) he failed to mention his medical
2 treatment in his asylum application and supplementary
3 statement because the injury was not serious, particularly
4 in comparison to his wife’s forced abortion; and (3) his
5 wife failed to mention his medical treatment in her letter
6 because only his sister accompanied him to the hospital.
7 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)
8 (emphasizing that the agency need not credit an applicant’s
9 explanations for inconsistent testimony unless those
10 explanations would compel a reasonable factfinder to do so).
11 Accordingly, considering the totality of the
12 circumstances, the IJ’s adverse credibility determination
13 was supported by substantial evidence. See 8 U.S.C.
14 § 1158(b)(1)(B)(iii). The adverse credibility determination
15 in this case necessarily precludes success on Ouyang’s
16 claims for asylum and withholding of removal because those
17 claims were based on the same factual predicate. See Paul
18 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (“[W]e have
19 routinely decided . . . that a withholding of removal claim
20 was meritless since the alien’s asylum claim had failed on
21 adverse credibility grounds.”). Ouyang has abandoned any
22 challenge to the denial of CAT relief.
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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