13-2127
Yu v. Holder
BIA
Nelson, IJ
A071 638 210
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 28th day of October, two thousand fourteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 PIERRE N. LEVAL,
10 Circuit Judges.
11
12 _____________________________________
13
14 CHI XIN YU,
15 Petitioner,
16
17 v. 13-2127
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Gerald Karikari, New York, New York.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
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1 General; Cindy S. Ferrier, Assistant
2 Director; Michele Y. F. Sarko,
3 Attorney, Office of Immigration
4 Litigation, United States Department
5 of Justice, Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Chi Xin Yu, a native and citizen of the
12 People’s Republic of China, seeks review of a May 2, 2013,
13 decision of the BIA, affirming the October 6, 2010, decision
14 of Immigration Judge (“IJ”) Barbara Nelson, denying his
15 application for asylum, withholding of removal, and relief
16 under the Convention Against Torture (“CAT”). In re Chi Xin
17 Yu, No. A071 638 210 (B.I.A. May 2, 2013), aff’g No. A071
18 638 210 (Immig. Ct. N.Y. City Oct. 6, 2010). We assume the
19 parties’ familiarity with the underlying facts and
20 procedural history of this case.
21 Under the circumstances of this case, we have reviewed
22 both the IJ’s and the BIA’s opinions “for the sake of
23 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
24 2008) (quotation marks and citations omitted). The
25 applicable standards of review are well established. See
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1 8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey,
2 546 F.3d 138, 157-58 (2d Cir. 2008); Secaida-Rosales v. INS,
3 331 F.3d 297, 307 (2d Cir. 2003), superseded by statute,
4 REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, as
5 recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64
6 (2d Cir. 2008).
7 I. Past Persecution
8 In pre-REAL ID Act cases, such as this case, an adverse
9 credibility determination must be based on “specific, cogent
10 reasons” that “bear a legitimate nexus to the finding,” and
11 any discrepancy must be “substantial” when measured against
12 the record as a whole. See Secaida-Rosales, 331 F.3d at 307
13 (internal quotation marks and citations omitted).
14 Substantial evidence supports the agency’s determination
15 that Yu was not credible as to his claim that family
16 planning officials had forced his ex-wife to terminate a
17 pregnancy and had fined and detained him on account of that
18 pregnancy.
19 Yu omitted from his original asylum application his
20 alleged detention despite a question explicitly asking him
21 to indicate whether he had ever been detained. See Liang
22 Chen v. U.S. Attorney Gen., 454 F.3d 103, 106-07 (2d Cir.
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1 2006); see also Xiu Xia Lin, 534 F.3d at 166 n.3 (“[a]n
2 inconsistency and an omission are . . . functionally
3 equivalent.”). Yu did not provide a compelling explanation
4 for this omission. See Majidi v. Gonzales, 430 F.3d 77, 80
5 (2d Cir. 2005). Moreover, as the agency noted, Yu had
6 reason to later embellish his claim to include a detention
7 under China’s coercive population control policy. Prior to
8 Yu’s submission of an amended application, we issued our
9 decision in Shi Liang Lin v. U.S. Department of Justice, 494
10 F.3d 296 (2d Cir. 2007), under which he was no longer per se
11 eligible for relief solely based on his spouse’s purported
12 forced procedure.
13 Given the material omission from Yu’s application,
14 coupled with the timing of his amended application following
15 the Shi Liang Lin decision, the agency reasonably found him
16 not credible as to his claim of past persecution. See
17 Secaida-Rosales, 331 F.3d at 307-08; see also Liang Chen,
18 454 F.3d at 106-07.
19 II. Well-Founded Fear of Persecution
20 For largely the same reasons as this Court set forth in
21 Jian Hui Shao, 546 F.3d 138, we find no error in the
22 agency’s determination that Yu failed to demonstrate his
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1 eligibility for relief based on his fear of future
2 persecution for his alleged violation of China’s population
3 control program. See id. at 158-72.
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
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