08-3195-ag
Hu v. Mukasey
BIA
Abrams, IJ
A099 534 847
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 15 th day of March, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
ROSEMARY S. POOLER,
REENA RAGGI,
Circuit Judges.
_______________________________________
YAN YAN HU,
Petitioner,
v. 08-3195-ag
NAC
ERIC H. HOLDER JR., ATTORNEY
GENERAL, *
Respondent.
_______________________________________
FOR PETITIONER: Henry Zhang, New York, New York.
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder Jr., is automatically substituted
for former Attorney General Michael B. Mukasey as respondent in
this case.
FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney
General, William C. Peachey,
Assistant Director, Jem C. Sponzo,
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.
Yan Yan Hu, a native and citizen of the People’s
Republic of China, seeks review of a June 10, 2008 order of
the BIA, affirming the December 7, 2006 decision of
Immigration Judge (“IJ”) Steven R. Abrams, which denied her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Yan Yan
Hu, No. A99 534 847 (B.I.A. June 10, 2008), aff’g No. A99
534 847 (Immig. Ct. N.Y. City Dec. 7, 2006). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
When the BIA affirms the IJ’s decision in some respects
but not others, this Court reviews the IJ’s decision as
modified by the BIA decision, i.e., minus the arguments for
denying relief rejected by the BIA. See Xue Hong Yang v.
U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We
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review the agency’s factual findings under the substantial
evidence standard. See 8 U.S.C. § 1252(b)(4)(B). We will
“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 v. Mukasey, 534 F.3d 162,
167 (2d Cir. 2008).
In its decision, the BIA noted two discrepancies that
the IJ did not rely upon in his adverse credibility
determination: (1) while Hu testified that her boyfriend
escorted her to and from the hospital, both her asylum
application and her boyfriend’s affidavit omitted this
detail; and (2) Hu testified inconsistently as to whether
family planning officials told her how far along she was in
her pregnancy. Hu correctly contends that, in so doing, the
BIA impermissibly engaged in fact-finding in violation of 8
C.F.R. § 1003.1(d)(3). See Xian Tuan Ye v. DHS, 446 F.3d
289, 296 (2d Cir. 2006) (citing 8 C.F.R. § 1003.1(d)(3)(i),
(iv)). As a result, we will review only the IJ’s
credibility findings.
We find that substantial evidence supports the agency’s
adverse credibility determination. The agency properly
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relied on Hu’s inconsistent accounts of where she lived
following her alleged forced abortion in 2008 —with her
boyfriend, as she testified, or with her parents, as
indicated on her asylum application. Hu offered no
explanation for this discrepancy to either the IJ or in her
brief to this Court. See 8 U.S.C. § 1158(b)(1)(B)(iii). In
addition to this inconsistency, the agency also based its
finding of adverse credibility on Hu’s demeanor. The IJ
specifically noted that Hu was evasive. See Shu Wen Sun v.
BIA, 510 F.3d 377, 381 (2d Cir. 2007) (per curiam) (giving
“particular deference” to IJ’s finding that petitioner
testified “in a manner that suggested untruthfulness, rather
than nervousness or difficulty comprehending the
proceedings”); Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d
Cir. 2005) (particular deference given to the trier of
fact’s assessment of demeanor).
Because substantial evidence supports the agency’s
adverse credibility determination, the agency’s denial of
Hu’s application for asylum, withholding of removal, and
relief under the CAT was not improper. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (recognizing that
a withholding of removal claim must fail if petitioner is
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unable to show the objective likelihood of persecution
needed to make out an asylum claim and the claims are based
on the same factual predicate).
Finally, as the government notes, Hu has not challenged
the agency’s denial of CAT relief before this Court, and
therefore has waived any such challenge. See Yueqing Zhang,
426 F.3d 540, 542 n.1, 546 n.7 (2d Cir. 2005); LoSacco v.
City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995)
(holding that an issue is abandoned when not raised in an
appellate brief).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, petitioner’s
pending motion for a stay of removal in this petition is
DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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