13-1571
Ye v. Holder
BIA
Hom, IJ
A200 931 709
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
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 14th day of April, two thousand fourteen.
PRESENT:
PETER W. HALL,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
YUEQI YE,
Petitioner,
v. 13-1571
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Thomas V. Massucci, New York, New
York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; David V. Bernal, Assistant
Director; Lance L. Jolley, Trial
Attorney, Civil Division, Office of
Immigration Litigation, 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 Yueqi Ye, a native and citizen of the
People’s Republic of China, seeks review of a March 29, 2013
decision of the BIA affirming the October 13, 2011, decision
of an Immigration Judge (“IJ”), which denied Ye’s
application for asylum, withholding of removal and relief
under the Convention Against Torture (“CAT”). In re Yueqi
Ye, No. A200 931 709 (B.I.A. Mar. 29, 2013), aff’g No. A200
931 709 (Immig. Ct. N.Y. City Oct. 13, 2011). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The agency’s
findings of fact will be affirmed if they are supported by
substantial evidence, and may be overturned only if “any
reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. 1252(b)(4)(B); see also Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
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As this application is governed by the REAL ID Act of
2005, the agency may base a credibility finding on the
totality of the circumstances, including the asylum
applicant’s demeanor, the plausibility of her account, and
inconsistencies in her statements, without regard as to
whether these factors go “to the heart of the applicant’s
claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). By this standard,
the agency’s adverse credibility determination is supported
by substantial evidence. The IJ relied on Ye’s demeanor and
discrepancies in her testimony regarding the timing of
significant events relevant to her alleged persecution. As
the IJ reasonably declined to credit Ye’s explanations for
these discrepancies, we defer to the agency’s findings. See
Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
Having reasonably found that Ye failed to establish
eligibility for asylum on credibility grounds, the agency
did not err in denying withholding of removal and relief
under the CAT, as these claims shared the same factual
predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
520, 523 (2d Cir. 2005).
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Ye argues that the agency did not properly consider her
mental state and poor memory in its credibility finding, and
asserts that the IJ breached his duty to inquire into her
mental competency during the merits hearing. However, Ye’s
claim regarding her competency has evolved at each stage of
review. Before the IJ, Ye attributed her testimonial
discrepancies to poor memory and limited education, an
explanation the IJ considered and reasonably rejected.
Before the BIA, Ye for the first time alleged mental
incompetency to explain her testimonial defects, and
submitted a psychiatric evaluation indicating depression.
Before us, Ye alleges a more pervasive and debilitating
mental incompetency, which she states the agency failed to
consider and which would require the agency to reconsider
its credibility finding.
Claims raised before us, but not before the agency, are
unexhausted, and we may not consider them. See Lin Zhong v.
U. S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2006)
(“We may consider only those issues that formed the basis
for [the agency] decision.”). Thus, we are limited to
considering the claim of mental incompetency only as raised
before the agency. Since the argument and supporting
evidence regarding Ye’s mental incompetence was offered for
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the first time before the BIA, and the BIA does not engage
in factfinding in its review of IJ decisions, 8 C.F.R. §
1003.1(d)(3)(iv), the BIA did not err in declining to assess
Ye’s mental competency in the first instance. Nor did the
BIA err in declining to remand the application to the IJ to
consider the mental incompetency claim. As the BIA noted,
the gravamen of Ye’s argument to the BIA – that her
testimonial inconsistencies should be excused due to her
poor memory – had already been thoroughly considered by the
IJ, and Ye’s request for remand included no evidence that
was unavailable to her during the initial proceedings before
the IJ. See 8 CFR § 1003.2(c)(1).
For the foregoing reasons, the petition for review is
DENIED. Ye’s request for oral argument is DENIED in
accordance with Fed. R. App. P. 34(a)(2) and 2d Cir. Local
R. 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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