Fang Ye v. Holder

11-1001 Ye v. Holder BIA Schoppert, IJ A098 718 081 A098 718 307 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 FANG YE, BO XIN CHEN, 14 Petitioners, 15 16 v. 11-1001 17 NAC 18 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONERS: Troy Nader Moslemi, New York, New 25 York. 26 07162014-B1-2 1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 2 General; Douglas E. Ginsberg, 3 Assistant Director; Nicole Prairie, 4 Trial Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, D.C. 8 9 UPON DUE CONSIDERATION of this petition for review of a 10 Board of Immigration Appeals (“BIA”) decision, it is hereby 11 ORDERED, ADJUDGED, AND DECREED that the petition for review 12 is DENIED. 13 Petitioners Fang Ye and Bo Xin Chen, natives and 14 citizens of the People’s Republic of China, seek review of a 15 March 2, 2011, decision of the BIA, affirming the June 2, 16 2008, decision of Immigration Judge (“IJ”) Douglas B. 17 Schoppert, denying their application for asylum, withholding 18 of removal, and relief under the Convention Against Torture 19 (“CAT”). In re Fang Ye, Bo Xin Chen, Nos. A098 718 081, 20 A098 718 307 (B.I.A. Mar. 2, 2011), aff’g Nos. A098 718 081, 21 A098 718 307 (Immig. Ct. N.Y. City June 2, 2008). We assume 22 the parties’ familiarity with the underlying facts and 23 procedural history of this case. 24 Under the circumstances of this case, we have reviewed 25 the decision of the IJ as supplemented by the BIA. See Yan 26 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 07162014-B1-2 2 1 applicable standards of review are well established. See 2 8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey, 3 546 F.3d 138, 157-58 (2d Cir. 2008); Secaida-Rosales v. INS, 4 331 F.3d 297, 307 (2d Cir. 2003), superseded by statute, 5 REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, as 6 recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 7 (2d Cir. 2008). 8 I. Past Persecution 9 In pre-REAL ID Act cases, such as this case, an adverse 10 credibility determination must be based on “specific, cogent 11 reasons” that “bear a legitimate nexus to the finding,” and 12 any discrepancy must be “substantial” when measured against 13 the record as a whole. See Secaida-Rosales, 331 F.3d at 14 307-08 (internal quotation marks and citations omitted). 15 Substantial evidence supports the agency’s determination 16 that petitioners were not credible as to their claim that 17 family planning officials had forced Ye to use an 18 intrauterine device (“IUD”) and had detained Chen for 19 resisting enforcement of China’s coercive population control 20 program. 21 Ye testified several times that she was coerced into 22 obtaining an IUD in September 2000, but later twice stated 07162014-B1-2 3 1 that she obtained the IUD in August 2000 and indicated that 2 the September 2000 date on her corroborating government- 3 issued IUD certificate did not reflect the correct date. In 4 addition, Ye and Chen testified inconsistently as to whether 5 Chen was at work, at home, or on his motorbike when family 6 planning officials detained him. Chen further made 7 discrepant statements regarding whether he saw the object 8 that officials used to harm him while he was detained. 9 Petitioners did not provide compelling explanations for 10 these inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 11 80 (2d Cir. 2005). 12 Because these inconsistencies related to the heart of 13 petitioners’ claim of past persecution, the agency’s adverse 14 credibility determination is supported by substantial 15 evidence. See Secaida-Rosales, 331 F.3d at 307-08; see also 16 Liang Chen v. U.S. Attorney Gen., 454 F.3d 103, 106-07 (2d 17 Cir. 2006). 18 II. Well-Founded Fear of Persecution 19 For largely the same reasons as this Court set forth in 20 Jian Hui Shao, 546 F.3d 138, we find no error in the 21 agency’s determination that petitioners failed to 22 demonstrate their eligibility for relief based on their fear 07162014-B1-2 4 1 of future persecution for their alleged violation of China’s 2 coercive population control program. See id. at 158-72. 3 For the foregoing reasons, the petition for review is 4 DENIED. As we have completed our review, any stay of 5 removal that the Court previously granted in this petition 6 is VACATED, and any pending motion for a stay of removal in 7 this petition is DISMISSED as moot. Any pending request for 8 oral argument in this petition is DENIED in accordance with 9 Federal Rule of Appellate Procedure 34(a)(2), and Second 10 Circuit Local Rule 34.1(b). 11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk 13 14 07162014-B1-2 5