Zhi You Wu v. Holder

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