12-3540
Yan v. Holder
BIA
Cheng, IJ
A089 929 373
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.
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 5th day of September, two thousand fourteen.
PRESENT:
JOHN M. WALKER, JR.,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
YONG JIN YAN,
Petitioner,
v. 12-3540
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Zhou Wang, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Russell J.E. Verby, Senior
Litigation Counsel; Katharine Clark,
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.
Yong Jin Yan, a native and citizen of the People’s
Republic of China, seeks review of a August 20, 2012 decision
of the BIA affirming the January 18, 2011 decision of
Immigration Judge (“IJ”) Mary Cheng, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Yong Jin
Yan, No. A089 929 373 (B.I.A. Aug. 20, 2012), aff’g No. A089
929 373 (Immig. Ct. N.Y. City Jan. 18, 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 decision of the IJ as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
F.3d 510, 513 (2d Cir. 2009).
For applications such as Yan’s, governed by the
amendments made to the Immigration and Nationality Act by the
REAL ID Act of 2005, the agency may, “considering the totality
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of the circumstances,” base a credibility finding on the
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his account, and inconsistencies in his
statements, without regard to whether they go “to the heart of
the applicant’s claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii);
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per
curiam). We “defer to an IJ’s credibility determination
unless, from the totality of the circumstances, it is plain
that no reasonable fact-finder could make” such a ruling. Xiu
Xia Lin, 534 F.3d at 167.
Here, the IJ reasonably based the adverse credibility
determination on inconsistencies between Yan’s hearing
testimony and credible fear interview, as well as on Yan’s
omission of information from his asylum application and during
his credible fear interview. These include: (1) the
discrepancy between Yan’s testimony that he was arrested
twice, and his statement during his credible fear interview
that he was arrested only once; (2) the discrepancy between
Yan’s testimony that he was released from detention in 2007
after his mother paid a fine, and the omission of any such
fine in his mother’s letter to the court; (3) Yan’s failure to
mention his 2007 arrest, detention, and beating in either his
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asylum application or during his credible fear interview; and
(4) Yan’s failure to mention in his asylum application that
his 2008 release from detention for practicing Falun Gong was
precipitated by his disclosure of the identity of a fellow
practitioner and his agreement regularly to report to the
police. See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);
Xiu Xia Lin, 534 F.3d at 167 (providing that IJ may support
adverse credibility determination with “any inconsistency or
omission”). Moreover, the IJ reasonably rejected Yan’s
explanations for these inconsistencies, specifically that he
was scared, forgot minor details, or did not think the
information relevant, because he gave detailed testimony on
some issues but not others. See Majidi v. Gonzales, 430 F.3d
77, 80-81 (2d Cir. 2005).
The IJ also reasonably required proof that Yan practiced
Falun Gong in the United States, given that Yan testified that
he practiced with a group and with coworkers and that they
could have provided affidavits. See Lizu Guan v. INS, 453
F.3d 129, 141 (2d Cir. 2006). Despite Yan’s assertion that he
was unaware that he should obtain affidavits, in light of his
acquisition of affidavits in support of other aspects of his
claim, the IJ reasonably rejected his explanation. See
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Majidi, 430 F.3d at 80-81. As to Yan’s demeanor, we defer to
the IJ’s finding that evasive testimony adversely affected
Yan’s credibility, as that finding was evident in Yan’s
changing explanations for the absence of co-worker
corroborating affidavits. See Li Hua Lin v. U.S. Dep’t of
Justice, 453 F.3d 99, 109 (2d Cir. 2006).
Given these inconsistencies and omissions, Yan’s evasive
demeanor, and the lack of reasonably available corroborating
evidence, the totality of the circumstances supports the
agency’s adverse credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. As the
only evidence of a threat to Yan’s life or freedom, or
likelihood of torture, depended upon his credibility, the
adverse credibility determination in this case necessarily
precludes success on his claims for withholding of removal and
CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (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 DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
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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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