13-336
Wu v. Holder
BIA
Gordon-Uruakpa, IJ
A089 094 899
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 12th day of May, two thousand fourteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 ZHI YOU WU,
14 Petitioner,
15
16 v. 13-336
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Luis E. Perez, Senior
27 Litigation Counsel; Justin R.
28 Markel, 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 Zhi You Wu, a native and citizen of China, seeks review
6 of a January 3, 2012, decision of the BIA affirming the July
7 7, 2011, decision of an Immigration Judge (“IJ”), which
8 denied his application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”). In
10 re Zhi You Wu, No. A089 094 899 (B.I.A. Jan. 3, 2012), aff’g
11 No. A089 094 899 (Immig. Ct. N.Y. City Jul. 7, 2011). We
12 assume the parties’ familiarity with the underlying facts
13 and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 both the IJ’s and the BIA’s opinions “for the sake of
16 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
17 2008). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
19 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 For applications, like Wu’s, governed by the REAL ID
21 Act, the agency may, “[c]onsidering the totality of the
22 circumstances,” base a credibility finding on an asylum
23 applicant’s “demeanor, candor, or responsiveness,” the
2
1 plausibility of his account, and inconsistencies in his
2 statements, without regard to whether they go “to the heart
3 of the applicant’s claim.” See 8 U.S.C.
4 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin v.
5 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We “defer to an
6 IJ’s credibility determination unless, from the totality of
7 the circumstances, it is plain that no reasonable fact-
8 finder could make such an adverse credibility ruling.” Xiu
9 Xia Lin, 534 F.3d at 167.
10 Here, the agency reasonably based its adverse
11 credibility determination on Wu’s inconsistent testimony and
12 failure to corroborate. First, the agency reasonably found
13 Wu not credible based on the inconsistency between his
14 testimony that he had been detained, and the omission of
15 that information from his asylum application. See 8 U.S.C.
16 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166 n.3. At
17 the hearing, Wu testified that he had been detained for
18 three days by the family planning office, but on his asylum
19 application he stated he had never been detained. When
20 questioned about the discrepancy, he had no explanation.
21 The failure to explain the inconsistency was reasonably
22 relied upon by the agency. See Majidi v. Gonzales, 430 F.3d
3
1 77, 80 (2d Cir. 2005). Moreover, this inconsistency goes to
2 the heart of Wu’s claim. See 8 U.S.C. § 1158(b)(1)(B)(iii);
3 Xiu Xia Lin, 534 F.3d at 166 n.3.
4 Second, the agency reasonably found that the lack of
5 corroboration further harmed Wu’s credibility, given that
6 the letter from his wife also failed to state that he had
7 been detained. See Biao Yang v. Gonzales, 496 F.3d 268, 273
8 (2d Cir. 2007). Furthermore, when asked why his wife’s
9 letter made no mention of his detention, he had no
10 explanation. Although Wu argued before the BIA that his
11 lawyer was ineffective because he had not included the
12 detention in the asylum application, he did not explain why
13 his wife would also have omitted such an important detail.
14 The reliance on this lack of corroboration is reasonable.
15 Because the only evidence of a threat to Wu’s life or
16 freedom depended upon his credibility, the adverse
17 credibility determination in this case also precluded
18 success on his claims for withholding of removal and CAT
19 relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
20 2006).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
4
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
5