13-3587
Wu v. Holder
BIA
Vomacka, IJ
A094 926 835
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
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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 15th day of January, two thousand fifteen.
PRESENT:
JON O. NEWMAN,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
ZHEN HUANG WU,
Petitioner,
v. 13-3587
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Troy Nader Moslemi, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Papu Sandhu, Trial
Attorney; Rachel E. Feuer, Law
Clerk, 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.
Zhen Huang Wu, a native and citizen of the People’s
Republic of China, seeks review of a September 4, 2013,
decision of the BIA affirming the January 31, 2012, decision
of an Immigration Judge (“IJ”) denying his application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Zhen Huang Wu,
No. A094 926 835 (B.I.A. Sept. 4, 2013), aff’g No. A094 926
835 (Immig. Ct. N.Y. City Jan. 31, 2012). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we review the
IJ’s decision as modified by the BIA. See Xue Hong Yang v.
U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
The applicable standards of review are well established.
See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
F.3d 510, 513 (2d Cir. 2009).
For asylum applications like Wu’s, governed by the REAL
ID Act of 2005, the agency may, “[c]onsidering the totality
of the circumstances,” base a credibility finding on the
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plausibility of an asylum applicant’s account, and
inconsistencies in his statements, without regard to whether
they go “to the heart of the applicant’s claim,” so long as
they reasonably support an inference that the applicant is
not credible. 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia
Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). 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 an adverse
credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. A
totality of the circumstances, including Wu’s inconsistent
evidence and the inherent implausibility of portions of his
claim, support the agency’s adverse credibility finding.
Wu testified that his mother never visited him and his
wife while they were in hiding at his mother-in-law’s house,
but a letter from Wu’s mother stated that she visited his
in-laws while they were in hiding to help care for his wife
while she was pregnant. When the IJ asked Wu about this
discrepancy, Wu suggested that his mother’s letter may have
been mistranslated. The IJ allowed him to present a new
translation, but warned Wu that he would need to explain the
prior mistranslation. Wu submitted a “re-translation” of
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his mother’s letter that stated that it was Wu who had
visited his wife while she was in hiding. He did not
explain why the second translation was more accurate, or
what accounted for the initial error. Given the lack of
compelling explanation, the agency reasonably relied on the
discrepancy between the first translation and Wu’s
testimony. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.
2005).
The agency also found inconsistencies relating to the
wife’s botched sterilization. In the statement accompanying
his asylum application, Wu wrote that when he and his wife
were leaving the hospital after she was sterilized, he
overheard a doctor say that “they had only sterilized one
fallopian tube because they could not found [sic] the other
one.” By contrast, Wu testified that he did not know why
the doctors “only tied the tube for one of them,” and upon
his attorney’s repeated questioning, stated that until the
merits hearing he did not know why the doctor had tied only
one tube. Later, Wu submitted an affidavit attesting that
when he was asked why the doctor only “sterilize[d] one of
[his] wife’s two tubes” he thought he was being asked for a
medical explanation, and because he was not a doctor, he
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could only respond that he did not know. The IJ reasonably
found that it was not “plausible or convincing” that Wu
thought he was being asked a medical question, as opposed to
what he had overheard at the hospital.
The IJ also found other aspects of Wu’s testimony
implausible. Substantial evidence supports a finding of
implausibility if the “IJ’s finding is tethered to record
evidence” and “the reasons for his incredulity are evident.”
Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007). Wu
submitted a notice from the family planning office in his
hometown, stating that he had to submit to sterilization
because he violated the policy. The notice is dated
September 2011, three years after authorities allegedly
visited Wu’s home and he fled to the United States. Wu
testified that the local family planning policy was to send
a notification “three years after the person escapes.” The
reasons for the IJ’s incredulity regarding this explanation
are evident.
Wu argues that the agency erred in discounting the
family planning notice, the letter from his mother, and a
letter from his wife. Because the letter from Wu’s mother
was inconsistent with his testimony, and the date on the
family planning notice rendered it inherently implausible,
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these documents do nothing to rehabilitate Wu’s incredible
testimony. Further, the agency did not err in according
limited weight to his wife’s letter because it was unsworn
and an interested witness submitted it. Y.C. v. Holder, 741
F.3d 324, 334 (2d Cir. 2013).
While each inconsistency or implausibility alone might
not support an adverse credibility finding, the agency
reasonably concluded that the cumulative effect was
consequential. Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d
Cir. 2006); see also Liang Chen v. U.S. Att’y Gen., 454 F.3d
103, 106-07 (2d Cir. 2006). Further, because the only
evidence of a threat to Wu’s life or freedom depended upon
his credibility, the agency’s finding that he was not
credible necessarily precludes success on his claims for
withholding of removal and CAT relief. 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 DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
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Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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