09-2266-ag
Qiu v. Holder
BIA
Mulligan, IJ
A 093 397 343
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 8 th day of February, two thousand ten.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11
12 _______________________________________
13
14 REN CHANG QIU,
15 Petitioner,
16
17 v. 09-2266-ag
18 NAC
19 ERIC H. HOLDER, JR., U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Henry Zhang, New York, New York.
25
26 FOR RESPONDENT: Benton J. Campbell, United States
27 Attorney; Margaret M. Kolbe,
28 Assistant United States Attorney;
29 Dione M. Enea, Special Assistant
30 United States Attorney, Brooklyn,
31 New York.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Ren Chang Qiu, a native and citizen of
6 China, seeks review of the April 30, 2009 order of the BIA
7 affirming the November 1, 2007 decision of Immigration Judge
8 (“IJ”) Thomas J. Mulligan denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Ren Chang Qiu,
11 No. A 093 397 343 (B.I.A. April 30, 2009), aff’g No. A 093
12 397 343 (Immig. Ct. N.Y. City Nov. 1, 2007). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 When the BIA agrees with the IJ’s conclusion that a
16 petitioner is not credible and, without rejecting any of the
17 IJ’s grounds for decision, emphasizes particular aspects of
18 that decision, we review both the BIA’s and IJ’s opinions --
19 or more precisely, we review the IJ’s decision including the
20 portions not explicitly discussed by the BIA. Yun-Zui Guan
21 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) We review the
22 agency’s factual findings, including adverse credibility
23 determinations, under the substantial evidence standard.
2
1 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519
2 F.3d 90, 95 (2d Cir. 2008). We review de novo questions of
3 law and the application of law to undisputed fact. See
4 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
5 As an initial matter, in his brief before this Court,
6 Qiu does not challenge the IJ’s findings that:(1) although
7 he testified and stated in his revised asylum application
8 that, in August 2004, he was beaten, detained, and arrested,
9 and that his wife had a second IUD forcibly inserted, he
10 made no such allegations in his original asylum application;
11 and (2) the “striking similarities” between statements from
12 Qiu’s wife and father undermined his credibility. Thus, he
13 has waived any challenge to those findings, Yueqing Zhang v.
14 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005), and
15 they stand as valid bases for the IJ’s adverse credibility
16 determination. 1 See Shunfu Li v. Mukasey, 529 F.3d 141,
17 146-147 (2d Cir. 2008).
1
Beyond waiving any challenge to these findings,
Attorney Henry Zhang includes large portions excerpted
from an unrelated brief. For example, Qiu argues in his
brief that the BIA erred by failing to consider the
economic harm he suffered, however economic harm was not
an issue in this case. Furthermore, the brief frequently
refers to the petitioner as “Mr. Ou,” rather than Mr.
Qiu, and recounts facts irrelevant to Qiu’s case.
Briefing of this sort is unacceptable, and represents a
continuation of the trend of poor quality briefing about
which Mr. Zhang has previously been warned.
3
1 Rather than challenge the key findings described above,
2 Qiu disputes the IJ’s assessment of his demeanor. In his
3 decision, the IJ found that Qiu “looked embarrassed when he
4 answered questions, and he appeared concerned that he was
5 making a mistake with his answer.” The IJ also observed
6 that, throughout his testimony, Qiu was “wringing his hands,
7 picking at his hands, and was extremely nervous.” In
8 addition, the IJ noted that when Qiu was asked about his
9 wife’s persecution, he was “very eager to talk about his own
10 purported problems, rather than listening to the question
11 that was presented.” Qiu argues that the IJ did not make
12 specific demeanor findings on the record, making it
13 impossible for this Court to determine whether “these
14 activities occurred at a critical point in the testimony.”
15 However, the record belies this argument insofar as the IJ
16 noted Qiu’s difficulty responding to questions about his
17 wife’s alleged persecution. Qiu also argues that he tended
18 to speak about his own problems because he was nervous
19 appearing before the court, but, although all aliens
20 appearing at their removal hearing are likely to be nervous,
21 no reasonable fact-finder would be compelled to credit this
22 explanation. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167
23 (2d Cir. 2008). In any event, we generally defer to an IJ’s
24 demeanor findings and find no reason not to do so here. See
4
1 Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005) (IJ
2 “is in the best position to discern, often at a glance,
3 whether . . . a witness who hesitated in a response was
4 nevertheless attempting truthfully to recount what he
5 recalled of key events or struggling to remember the lines
6 of a carefully crafted ‘script’; and whether inconsistent
7 responses are the product of innocent error or intentional
8 falsehood”); see also 8 U.S.C. § 1158(b)(1)(B)(iii).
9 Ultimately, the IJ’s credibility determination was
10 supported by substantial evidence. See 8 U.S.C.
11 § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 167. Therefore,
12 the IJ did not err in denying Qiu’s application for asylum,
13 withholding of removal, and CAT relief because the only
14 evidence that Qiu would be persecuted or tortured depended
15 on his credibility. See Paul v. Gonzales, 444 F.3d 148, 156
16 (2d Cir. 2006).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any pending motion
19 for a stay of removal in this petition is DISMISSED as moot.
20 Any pending request for oral argument in this petition is
21 DENIED in accordance with Federal Rule of Appellate
22 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
23
24 FOR THE COURT:
25 Catherine O’Hagan Wolfe, Clerk
26
27
28
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