Suhua Yang v. Holder

10-3756-ag Yang v. Holder BIA Nelson, IJ A088 805 110 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 2nd day of June, two thousand eleven. 5 6 PRESENT: 7 ROGER J. MINER, 8 GUIDO CALABRESI, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _______________________________________ 12 13 SUHUA YANG, 14 Petitioner, 15 16 v. 10-3756-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: John Z. Zhang, New York, New York. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General; John S. Hogan, Senior 27 Litigation Counsel; Kiley L. Kane, 28 Trial Attorney, Office of 29 Immigration Litigation, Civil 30 Division, United States Department 31 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 Suhua Yang, a native and citizen of the 6 People’s Republic of China, seeks review of a August 24, 7 2010 order of the BIA affirming the November 6, 2008 8 decision of Immigration Judge (“IJ”) Barbara A. Nelson, 9 denying Yang’s application for asylum, withholding of 10 removal, and relief under the Convention Against Torture 11 (“CAT”). In re Suhua Yang, No. A088 805 110 (B.I.A. Aug. 12 24, 2010), aff’g No. A088 805 110 (Immigr. Ct. N.Y. City 13 Nov. 6, 2008). We assume the parties’ familiarity with the 14 underlying facts and procedural history of the case. 15 Under the circumstances of this case, we have reviewed 16 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v. 17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable 18 standards of review are well-established. See 8 U.S.C. 19 § 1252(b)(4)(B) (2006); see also Xiu Xia Lin v. Mukasey, 534 20 F.3d 162, 165–66 (2d Cir. 2008); Salimatou Bah v. Mukasey, 21 529 F.3d 99, 110 (2d Cir. 2008). 22 Substantial evidence supports the agency’s conclusion 23 that Yang was not credible. As the IJ found, although Yang 2 1 asserted in her asylum application that her brother was 2 arrested, both her brother’s letter and her testimony on 3 direct examination omitted this detail. The IJ was entitled 4 to rely on this discrepancy in finding Yang not credible. 5 See 8 U.S.C. § 1158(b)(1)(B)(iii) (2006); Xiu Xia Lin, 534 6 F.3d at 166–67 n.3 (noting that inconsistencies and 7 omissions are “functionally equivalent”). 8 Furthermore, the agency adequately considered Yang’s 9 explanations for her inconsistent testimony and reasonably 10 declined to credit the explanations. Yang explained that 11 her brother’s letter omitted details about the arrest 12 because he told her about the incident over the telephone. 13 Yang also explained that she omitted details about her 14 brother’s arrest on direct examination because she 15 understood “arrest” to mean sentenced and jailed, and that 16 because her brother had not been jailed, she did not 17 consider her brother being taken away by Chinese police as 18 an “arrest.” A reasonable fact-finder would not be 19 compelled to credit Yang’s explanations because her asylum 20 application explicitly provided that her brother was 21 detained and arrested, while the letter from Yang’s brother 22 discussed details of the incident in which police 23 interrupted their mother’s funeral, but did not include any 3 1 mention of his arrest, detention, or beating as asserted by 2 Yang. See Majidi v. Gonzales, 430 F.3d 77, 80–81 (2d Cir. 3 2005) (holding that an IJ need not credit an applicant’s 4 explanations for inconsistent testimony unless those 5 explanations would compel a reasonable fact-finder to do 6 so). 7 The adverse credibility determination is further 8 supported by the IJ’s demeanor finding, to which we give 9 particular deference, as the IJ relied on Yang’s evasive 10 testimony and lack of responsiveness as reflected in the 11 hearing transcripts. See id. at 81 n.1 (holding that 12 particular deference is generally afforded to the agency’s 13 assessment of an applicant’s demeanor); see also Li Hua Lin 14 v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) 15 (“We can be . . . more confident in our review of 16 observations about an applicant’s demeanor where . . . they 17 are supported by specific examples of inconsistent 18 testimony.”). 19 Accordingly, considering the totality of the 20 circumstances — Yang’s omissions and lack of responsiveness 21 — the agency’s credibility determination is supported by 22 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii) 23 (2006). Because the only evidence of a threat to Yang’s 4 1 life or freedom depended upon her credibility, the adverse 2 credibility determination in this case necessarily precludes 3 success on her claims for asylum, withholding of removal, 4 and CAT relief, as all three claims are based on the same 5 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 6 155–56 (2d Cir. 2006). Because substantial evidence 7 supports the IJ’s adverse credibility determination, and 8 that determination is dispositive, we do not reach Yang’s 9 remaining arguments. 10 For the foregoing reasons, the petition for review is 11 DENIED. As we have completed our review, any stay of 12 removal that the Court previously granted in this petition 13 is VACATED, and any pending motion for a stay of removal in 14 this petition is DISMISSED as moot. Any pending request for 15 oral argument in this petition is DENIED in accordance with 16 Federal Rule of Appellate Procedure 34(a)(2), and Second 17 Circuit Local Rule 34.1(b). 18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20 5