10-2067-ag
Zhao v. Holder
BIA
Balasquide, IJ
A094 798 042
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 5th day of May, two thousand eleven.
PRESENT:
GUIDO CALABRESI,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
______________________________________
SONG YUE ZHAO, a.k.a. SONGYUE ZHAO
Petitioner,
10-2067-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Thomas V. Massucci, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Anh-Thu P. Mai-Windle,
Senior Litigation Counsel; Karen Y.
Stewart, Attorney, Office of
Immigration Litigation, Civil
Division, 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, Song Yue Zhao, a native and citizen of
China, seeks review of an April 30, 2010, decision of the
BIA affirming the September 18, 2008, decision of
Immigration Judge (“IJ”) Javier E. Balasquide denying her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Song Yue
Zhao, No. A094 798 042 (B.I.A. April 30, 2010), aff’g No.
A094 798 042 (Immig. Ct. N.Y. City Sept. 18, 2008). We
assume the parties’ familiarity with the underlying facts
and procedural history of the case.
Under the circumstances of this case, we review both
the BIA’s and the IJ’s decisions. See Yun-Zui Guan v.
Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d
Cir. 2008); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-67
(2d Cir. 2008).
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The agency’s adverse credibility determination was
based on substantial evidence, given inconsistencies in
Zhao’s testimony and inconsistencies between her testimony
and her asylum application. Zhao initially testified that
she lived with her boyfriend for four years, but
subsequently testified that she lived with him for less than
one year. Her asylum application indicated that she began
living with him in October 2005, but she alternately
testified that she began living with him in either February
2005 or October 2005. See 8 U.S.C. § 1158(b)(1)(B)(iii)
(providing that an adverse credibility determination may be
based on “the consistency between the applicant’s or
witness’s written and oral statements . . ., the internal
consistency of each such statement, the consistency of such
statements with other evidence of record . . ., and any
inaccuracies or falsehoods in such statements, without
regard to whether an inconsistency . . . goes to the heart
of the applicant’s claim”).
Although Zhao explained that the four-year interval
referred to the time she knew her boyfriend, rather than the
time she lived with him, the agency was not compelled to
accept Zhao’s explanation, given that her initial response
followed questions specifically asking her about whether and
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for how long she lived with her boyfriend, and given that
she concedes that she testified elsewhere that she knew her
boyfriend for a period of nearly six years. See Majidi v.
Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that on
appeal applicant must demonstrate that explanations for
inconsistent testimony compel reasonable fact-finder’s
belief). The agency also was not compelled to accept Zhao’s
explanation for the discrepancy between her testimony and
her asylum application about the date she began living with
her boyfriend, as her only explanation was that she had made
a mistake in her testimony. Id.
Because the agency’s adverse credibility determination
is supported by substantial evidence, the agency did not err
in denying relief from removal. See Majidi, 430 F.3d at 81-
82 (determining that petitioner failed to establish
eligibility for asylum or withholding of removal because
substantial evidence supported the agency’s adverse
credibility finding); Paul v. Gonzales, 444 F.3d 148, 155-57
(2d Cir. 2006) (noting that when the same factual assertions
are needed for asylum, withholding of removal, and CAT
relief, an adverse credibility finding regarding those
assertions forecloses all forms of relief).
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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