12-5013
Yang v. Holder
BIA
Phelps, IJ
A087 537 463
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 30th day of October, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 LIN JIA YANG,
14 Petitioner,
15
16 v. 12-5013
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael Brown, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Linda S. Wernery,
27 Assistant Director; Susan B. Green,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, 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 Lin Jia Yang, a native and citizen of the People’s
6 Republic of China, seeks review of a December 7, 2012,
7 decision of the BIA affirming the April 28, 2011, decision
8 of Immigration Judge (“IJ”) Richard A. Phelps, which denied
9 his application for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Lin Jia Yang, No. A087 537 463 (B.I.A. Dec. 7, 2012), aff’g
12 No. A087 537 463 (Immig. Ct. N.Y. City Apr. 28, 2011). 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 have reviewed
16 the decisions of both the IJ and the BIA. See Yun-Zui Guan
17 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
18 The applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
20 Mukasey, 534 F.3d 162, 165-67 (2d Cir. 2008) (per curiam).
21 For applications such as Yang’s, governed by the
22 amendments made to the Immigration and Nationality Act by
23 the REAL ID Act of 2005, the agency may, “[c]onsidering the
2
1 totality of the circumstances,” base a credibility finding
2 on the plausibility of an applicant’s account, as well as
3 inconsistencies in his statements, without regard to whether
4 they go “to the heart of the applicant’s claim.” 8 U.S.C.
5 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see Xiu Xia Lin, 534
6 F.3d at 167. We “defer [ ] to an IJ’s credibility
7 determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder
9 could make such an adverse credibility ruling.” Xiu Xia
10 Lin, 534 F.3d at 167. As discussed below, the agency
11 reasonably based its adverse credibility finding on the
12 inconsistencies among Yang’s testimony and evidence
13 concerning the dates of his alleged beating and attempted
14 arrest.
15 In finding Yang not credible, the agency reasonably
16 relied on the discrepancies between his testimony and the
17 record evidence regarding the years in which: (1) village
18 cadres allegedly detained, beat, and tortured him; and
19 (2) police officers attempted to arrest him for promoting
20 Falun Gong at his friend’s book stand. See 8 U.S.C.
21 § 1158(b)(1)(B)(iii). While Yang contends that these
22 inconsistencies were minor, the IJ reasonably found that
23 they were significant because they related to the two
3
1 seminal events underlying Yang’s claim and, as such, the
2 totality of the circumstances do not suggest that “no
3 reasonable fact-finder could make such an adverse
4 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
5 Contrary to Yang’s assertions, the agency did not
6 ignore any of his corroborating evidence. See Xiao Ji Chen
7 v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir.
8 2006) (noting that the agency is presumed to have “taken
9 into account all of the evidence before [it], unless the
10 record compellingly suggests otherwise”). Although Yang
11 faults the IJ for failing to explicitly discuss each of his
12 evidentiary submissions on the record, the agency is not
13 required to “expressly parse or refute on the record each
14 and every one of a petitioner's purported explanations for
15 testimonial inconsistencies or evidentiary gaps.” Id.
16 Moreover, the agency explicitly addressed Yang’s friend’s
17 affidavit and found that it was inconsistent with Yang’s
18 testimony with respect to the dates of his beating and
19 attempted arrest and, therefore, did not corroborate his
20 claim. See id. at 342 (stating that generally the weight
21 afforded to a petitioner’s evidence lies largely within the
22 discretion of the agency). Accordingly, the record does not
23 compellingly suggest that the agency ignored Yang’s
24 corroborating evidence. See id. at 336 n.17.
4
1 Given the inconsistencies in Yang’s testimony and
2 between his testimony and corroborating evidence, the
3 totality of the circumstances supports the agency’s adverse
4 credibility determination. See 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
6 Moreover, the agency’s adverse credibility determination
7 necessarily precluded Yang’s success on his claims for
8 asylum, withholding of removal, and CAT relief, as those
9 claims shared the same factual predicate. See Paul v.
10 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
11 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
5