12-2100
Yu v. Lynch
BIA
Montante, IJ
A087 563 591
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
13th day of July, two thousand fifteen.
PRESENT:
GUIDO CALABRESI,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
ZHEN WEI YU,
Petitioner,
v. 12-2100
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,*
Respondent.
_____________________________________
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch is automatically substituted
for former Attorney General Eric H. Holder, Jr. as Respondent.
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FOR PETITIONER: Gary J. Yerman, Esq., New York,
New York.
FOR RESPONDENT: Stuart F. Delery, Principal Deputy
Assistant Attorney General; Ada E.
Bosque, Senior Litigation Counsel;
Jonathan Robbins, 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 Zhen Wei Yu, a native and citizen of China, seeks
review of an April 30, 2012 decision of the BIA affirming an
August 10, 2010 decision of an Immigration Judge (“IJ”), denying
Yu’s application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). See In re Zhen
Wei Yu, No. A087 563 591 (B.I.A. Apr. 30, 2012), aff’g No. A087
563 591 (Immig. Ct. Buffalo, N.Y. Aug. 10, 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 the
IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S.
2
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); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
165-66 (2d Cir. 2008).
For asylum applications governed by the REAL ID Act, such
as Yu’s, the IJ may, considering the totality of the
circumstances, base a credibility finding on an asylum
applicant’s demeanor, candor, or responsiveness, and
inconsistencies in his 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); Xiu Xia
Lin, 534 F.3d at 163, 165. Here, a totality of the
circumstances, including inconsistencies and omissions between
Yu’s testimony and his personal statement or other record
evidence, support the IJ’s credibility determination. See
Xiu Xia Lin, 534 F.3d at 166 n.3.
Yu testified that he was a member of the student democratic
organization “Sound of Freedom,” but made no mention of the
group in his personal statement. When asked to explain this
omission, Yu testified that he did not think that he had to put
the name down. This explanation is not compelling, and the IJ
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was not required to accept it. See Majidi v. Gonzales, 430 F.3d
77, 80 (2d Cir. 2005). Yu also testified that the police forced
him to sign a guarantee letter that required him to report to
the station every two weeks, but his personal statement does
not mention any such letter; it states only that he was closely
watched by the police. Yu argues that this inconsistency was
minor and that he was not required to list every incident of
persecution in his asylum application. Yu’s argument is
unpersuasive, however, as it ignores the distinction between
being watched by the police and being made to sign a guarantee
letter that required him to report to the police station every
two weeks. See id. at 81 (deferring to agency credibility
determination where reasonable factfinder not “compelled” to
conclude to the contrary).
The agency also reasonably found Yu’s testimony
inconsistent with his father’s letter. Yu testified that the
police arrested him at his apartment, but his father’s letter
states that Yu was arrested at the father’s home. This
inconsistency provides substantial support for the IJ’s adverse
credibility determination because it directly relates to the
one significant instance of persecution that Yu alleges. See
4
Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d
Cir. 2006). Yu’s counsel wrote a letter to the IJ after the
hearing claiming that that the letter’s translation was
incorrect, but the IJ reasonably rejected that explanation,
noting that Yu’s counsel is not a translator, and Yu did not
point to any other record evidence indicating that the
translation was deficient. See Majidi, 430 F.3d at 80.
Given the inconsistencies between Yu’s testimony and his
personal statement or other record evidence, we conclude that
substantial evidence supports the agency’s adverse credibility
determination, which provided an adequate basis for denying him
asylum, withholding of removal, and CAT relief. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 165; see also
Paul v. Gonzales, 444 F.3d 148, 155-57 (2d Cir. 2006).1
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, Yu’s pending motion
for a stay of removal in this petition is DENIED as moot. Any
1 We do not consider Yu’s arguments regarding (1) the IJ’s
purported failure to consider Yu’s alternative explanation for
these inconsistencies, and (2) the IJ’s reliance on Yu’s history
of immigration fraud, as Yu did not raise these arguments before
the BIA. See Acharya v. Holder, 761 F.3d 289, 294 n.2 (2d Cir.
2014).
5
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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