12-4468
Tian v. Holder
BIA
Sichel, IJ
A200 026 821
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
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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
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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 July, two thousand fourteen.
PRESENT:
PIERRE N. LEVAL,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
ZHONG FEI TIAN,
Petitioner,
v. 12-4468
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Stuart Altman, Esq., New York,
New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Blair T. O’Connor, Assistant
Director; Scott M. Marconda, Trial
Attorney, 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 Zhong Fei Tian, a native and citizen of the
People’s Republic of China, seeks review of an October 25,
2012 decision of the BIA, affirming the June 8, 2010 decision
of Immigration Judge (“IJ”) Helen Sichel, denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). See In re Zhong
Fei Tian, No. A200 026 821 (B.I.A. Oct. 25, 2012), aff’g No.
A200 026 821 (Immig. Ct. N.Y. City June 8, 2010). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
both the BIA’s and IJ’s opinions. See Zaman v. Mukasey, 514
F.3d 233, 237 (2d Cir. 2008). The applicable standards of
review are well established. See 8 U.S.C. § 1252(b)(4)(B);
see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165–66 (2d Cir.
2008). For asylum applications governed by the REAL ID Act,
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the agency may, considering the totality of the circumstances,
base a credibility finding on inconsistencies in the asylum
applicant’s statements and other record evidence without
regard to whether they go “to the heart of the applicant’s
claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534
F.3d at 163–64. Here, substantial evidence supports the
agency’s determination that Tian was not credible.
Tian omitted from both his asylum application and his
testimony at his first merits hearing, and his wife omitted
from her letter, his claim that family planning officials
sought to arrest him and that he fears harm on account of his
resistance to China’s family planning policy. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 166-67
& n.3. As the IJ noted, Tian had reason later to embellish
his claim to include a fear of harm for resisting the family
planning policy because, after he filed his asylum application
and testified at his first merits hearing, we issued our
decision in Shi Liang Lin v. United States Department of
Justice, 494 F.3d 296 (2d Cir. 2007), under which he was no
longer per se eligible for relief based solely on his wife’s
forced abortion.1
1
Shi Liang Lin did not create a new category of eligibility
based on “other resistance” to coercive family planning
3
Tian attempts to explain this discrepancy by arguing that
his former counsel’s employee provided ineffective assistance
by advising him only to include in his application and
testimony information about his wife’s abortion. But in
response to open-ended questions, Tian testified about a fear
of imprisonment for having illegally departed China, yet
failed ever to mention any facts related to his other
resistance claim. In such circumstances, the IJ reasonably
rejected Tian’s explanation that he was prevented from raising
any claim other than his wife’s forced abortion based on
advice from his former counsel’s office. See Majidi v.
Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (stating that
petitioner ”must do more than offer a plausible explanation
for his inconsistent statements to secure relief; he must
demonstrate that a reasonable fact-finder would be compelled
to credit his testimony” (emphasis in original) (internal
quotation marks omitted)); see also Rabiu v. INS, 41 F.3d 879,
882–83 (2d Cir. 1994).
programs. Persecution based on resistance to a coercive
population control program has been a basis for asylum relief
since the Illegal Immigration Reform and Immigrant
Responsibility Act was enacted in 1996. See 8 U.S.C.
§ 1101(a)(42)(B). Therefore, when Tian first applied for
asylum in 2005, his claimed fear of persecution on account of
his resistance to the family planning policy was a basis for
relief.
4
Given the material omission from Tian’s application and
testimony, coupled with the timing of his additional claim
following the Shi Liang Lin decision, the agency reasonably
found Tian not credible. See Xiu Xia Lin, 534 F.3d at 163-64,
166 & n.3. Accordingly, the agency did not err in denying
Tian asylum, withholding of removal, and CAT relief because
those claims were based on the same factual predicate. See
Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DENIED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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