12-3751
Wu v. Holder
BIA
Nelson, IJ
A089 099 862
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 7th day of July, two thousand fourteen.
5
6 PRESENT: ROBERT D. SACK,
7 REENA RAGGI,
8 SUSAN L. CARNEY,
9 Circuit Judges.
10 _____________________________________
11
12 XIU ZHAN WU,
13 Petitioner,
14
15 v. 12-3751
16 NAC
17 ERIC H. HOLDER, JR., UNITED STATES
18 ATTORNEY GENERAL,
19 Respondent.
20 _____________________________________
21
22 FOR PETITIONER: Yee Ling Poon, Robert Duk-Hwan Kim (on
23 the brief), New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Daniel E. Goldman, Senior
27 Litigation Counsel; Nicole N. Murley,
28 Trial Attorney, Office of Immigration
29 Litigation, United States Department
30 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 Xiu Zhan Wu, a native and citizen of China, seeks review
6 of an August 24, 2012, decision of the BIA affirming an
7 Immigration Judge’s (“IJ”) November 23, 2010 denial of asylum,
8 withholding of removal, and relief under the Convention
9 Against Torture (“CAT”). In re Xiu Zhan Wu, No. A089 099 862
10 (B.I.A. Aug. 24, 2012), aff’g No. A089 099 862 (Immig. Ct.
11 N.Y. City Nov. 23, 2010). We assume the parties’ familiarity
12 with the underlying facts and procedural history of this case.
13 Under the circumstances of this case, we have reviewed
14 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v.
15 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
16 standards of review are well-established. See 8 U.S.C.
17 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d
18 162, 165-66 (2d Cir. 2008); Li Yong Cao v. United States DOJ,
19 421 F.3d 149, 156 (2d Cir. 2005).
20 For asylum applications, like Wu’s, governed by the REAL
21 ID Act, the agency may, “[c]onsidering the totality of the
22 circumstances,” base a credibility finding on inconsistencies
2
1 in the applicant’s statements and other record evidence
2 without regard to whether they go “to the heart of the
3 applicant’s claim,” demeanor and responsiveness to
4 questioning, and the “inherent plausibility” of the
5 applicant’s account. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
6 Lin, 534 F.3d at 163-64. Substantial evidence supports the
7 agency’s adverse credibility determination, specifically, Wu’s
8 admission, under oath, that she lied during her asylum
9 interview by providing false or exaggerated answers with
10 respect to the date and circumstances of her undisputed
11 sterilization in order to strengthen her claim that the
12 sterilization was forced. Although Wu explained that she lied
13 on advice of an assistant to a lawyer hired by a “snakehead,”
14 the agency was not required to credit her explanation. See
15 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“A
16 petitioner must do more than offer a plausible explanation for
17 his inconsistent statements to secure relief; he must
18 demonstrate that a reasonable fact-finder would be compelled
19 to credit his testimony.” (internal quotation marks and
20 citations omitted)). Moreover, the agency was not required to
21 credit her testimony of forced sterilization given her
22 acknowledged lies on this matter. See Siewe v. Gonzales, 480
3
1 F.3d 160, 170 (2d Cir. 2007) (noting that “single instance of
2 false testimony may (if attributable to the petitioner) infect
3 the balance of the alien’s uncorroborated or unauthenticated
4 evidence”); see also 8 U.S.C. § 1158(b)(1)(B)(iii) (“There is
5 no presumption of credibility[.]”). Thus, we conclude that
6 the record falsity provides substantial evidence supporting
7 the agency’s adverse credibility finding.
8 Given this lack of credibility, the agency properly
9 considered the absence of corroborating evidence. See Biao
10 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). While the
11 agency agreed that the medical documentation confirmed Wu’s
12 sterilization, the record supports the agency’s conclusion
13 that there was no evidence of when the procedure took place or
14 whether it was involuntary. The agency also reasonably
15 declined to credit the letter from Wu’s husband. See Matter
16 of H-L-H & Z-Y-Z, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)
17 (giving diminished evidentiary weight to letters from
18 relatives because they were “interested witnesses who were not
19 subject to cross-examination”) overruled on other grounds by
20 Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012);
21 see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
22 342 (2d Cir. 2006) (explaining that weight given to
4
1 applicant’s evidence lies largely within discretion of
2 agency).
3 Given that Wu’s own testimony was called into question by
4 fabrications at her asylum interview and that she provided no
5 corroborating evidence from a non-interested party that her
6 sterilization was forced, the agency reasonably found her to
7 have failed credibly to demonstrate past persecution. See Xiu
8 Xia Lin, 534 F.3d at 167. As all of Wu’s claims share the
9 same factual predicate, that determination is dispositive as
10 to asylum, withholding of removal, and CAT relief. See Paul
11 v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
12 Nor has Wu shown that the BIA abused its discretion by
13 denying remand due to alleged ineffective assistance of
14 counsel. Li Yong Cao, 421 F.3d at 151, 156-57. The BIA
15 denied remand because Wu had not substantially complied with
16 the requirements for an ineffective assistance claim set forth
17 in In re Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), and had
18 failed to provide any evidence showing that she had ever been
19 represented by attorney Hak Tung Lam. Notably, Wu provided no
20 details of any agreement with Lam or any proof that she had
21 notified him of her allegations. Lam never filed a notice of
22 appearance nor did he appear at any of Wu’s immigration
23 hearings. Given this lack of evidence of representation and
5
1 lack of compliance with the Lozada requirements, the BIA did
2 not abuse its discretion in denying remand. Jian Yun Zheng v.
3 U.S. DOJ, 409 F.3d 43, 46 (2d Cir. 2005).
4 Insofar as Wu now argues that we should remand to allow
5 her to present the agency with further evidence in support of
6 her asylum claim, specifically, a press release about Lam’s
7 misconduct, we decline to do so as she fails to show that it
8 would alter the result in her case. See Li Yong Cao, 421 F.3d
9 at 156 (noting that petitioners seeking remand due to new
10 evidence face heavy burden of demonstrating likelihood that
11 new evidence would alter result in case).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of removal
14 that the Court previously granted in this petition is VACATED,
15 and any pending motion for a stay of removal in this petition
16 is DISMISSED as moot. Any pending request for oral argument
17 in this petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk of Court
22
23
6