08-0343-ag
Chi v. Holder
BIA
Hom, IJ
A77-922-192
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S LO CAL RULE
32.1.1 AND FEDERAL R ULE OF APPELLATE PROCEDURE 32.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER
M UST 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 5 th day of February, two thousand ten.
PRESENT: JON O. NEWMAN,
ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_______________________________________
YUN HUI CHI,
Petitioner,
v. 08-0343-ag
NAC
ERIC H. HOLDER JR., U.S. ATTORNEY
GENERAL, 1
Respondent.
_______________________________________
FOR PETITIONER: Charles Christophe, Christophe &
Associates, New York, New York.
FOR RESPONDENT: Gregory G. Katsas, Assistant
Attorney General, Civil Division;
1
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.
Ernesto H. Molina, Jr., Senior
Litigation Counsel; Ali Manuchehry,
Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED in part and DISMISSED in part.
Petitioner Yun Hui Chi, a native and citizen of the
People’s Republic of China, seeks review of the December 20,
2007 order of the BIA affirming the February 1, 2006
decision of Immigration Judge (“IJ”) Sandy Hom, denying her
applications for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Yun Hui
Chi, No. A77 922 192 (B.I.A. Dec. 20, 2007), aff’g No. A77
922 192 (Immig. Ct. N.Y. City Feb. 1, 2006). We assume the
parties’ familiarity with the underlying facts and
procedural history of the case.
When the BIA agrees with the IJ's conclusion that a
petitioner is not credible and, without rejecting any of the
IJ's grounds for decision, emphasizes particular aspects of
that decision, this Court reviews both the BIA's and IJ's
opinions-or more precisely, the Court reviews the IJ's
decision including the portions not explicitly discussed by
2
the BIA. Yun-Zui Guan v. Gonzales, 432 F .3d 391, 394 (2d
Cir. 2005). We review the agency’s factual findings,
including adverse credibility determinations, under the
substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);
see, e.g., Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.
2007). We review de novo questions of law and the
application of law to undisputed fact. See Salimatou Bah v.
Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
Substantial evidence supports the agency’s adverse
credibility determination because the agency identified a
material inconsistency regarding Petitioner’s capture on the
day of her alleged forced abortion. In 2002, Petitioner
testified that she “kept running and running” and was
“[v]ery far away” from her aunt’s house before she slipped
and was apprehended by the family planning officials.
However, in 2006, Petitioner testified that she was near the
house when she tripped and fell and that she “just had the
back door open and [she had] just started to get outside
through the back door before [she] tripped and fell.” This
inconsistency goes to the heart of Petitioner’s claim that
her abortion was forced, as it concerns the facts
surrounding her alleged apprehension and capture. See
Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003),
3
superseded by statute as recognized in Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008) (per curiam) 2
(noting that, in pre-REAL ID Act cases, an adverse
credibility determination must be based on “specific, cogent
reasons” that “bear a legitimate nexus” to the finding);
Hongsheng Leng v. Mukasey, 528 F.3d 135, 141 (2d Cir. 2008)
(“The agency may properly base an adverse credibility
determination on a discrepancy in the petitioner’s evidence
if the discrepancy in question goes ‘to the heart’ of
petitioner’s claim for relief.”). Moreover, the IJ gave
Petitioner a chance to reconcile her testimony. See Ming
Shi Xue v. BIA, 439 F.3d 111, 125 (2d Cir. 2006). Chi
explained that the distance she had run had seemed far
because she was pregnant and felt unclear and faint. We do
not agree that a reasonable factfinder would have been
compelled to accept her explanation. See Majidi v.
Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
2
The standard of review articulated in Secaida-Rosales
was superseded by the enactment of the REAL ID Act. See Xiu
Xia Lin, 534 F.3d at 167 (“our previous holding that an IJ
may not base an adverse credibility determination on
inconsistencies and omissions that are ‘collateral or
ancillary’ to an applicant’s claims has been abrogated by
the amendments to the statutory standard imposed by the REAL
ID Act”). However, because Petitioner filed her asylum
claim before the changes worked by the REAL ID Act took
effect, Secaida-Rosales governs this case.
4
We conclude, moreover, that the IJ did not err in
determining that petitioner failed to provide evidence that
she would suffer persecution on account of the birth of her
second child in the United States. Nor did the agency err
in rejecting petitioner’s claim that she reasonably feared
future persecution or that she was entitled to CAT relief to
the extent the claim was based upon her illegal departure
from China. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432
F.3d 156, 159-60 (2d Cir. 2005) (holding that an applicant
is not “entitled to CAT protection based solely on the fact
that she is part of the large class of persons who have
illegally departed China”).
Ultimately, the record supports the agency’s conclusion
that the Petitioner was not credible. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Hongsheng Leng, 528 F.3d at 141.
Because the Petitioner’s asylum and withholding of removal
claims were based on the same factual predicate, the adverse
credibility determination was fatal to both claims. See
Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
Further, inasmuch as Petitioner based her CAT claim on her
own assertions, the agency’s adverse credibility finding was
fatal to that claim as well. See Xue Hong Yang v. U.S.
Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
5
Petitioner argues, for the first time on appeal, that
the agency violated her due process rights by failing to
present her with the opportunity to address the “non-
obvious” inconsistency upon which the IJ relied. However,
such claim is an obvious attempt to recast a factual
argument as a constitutional challenge. Moreover, the
argument is patently frivolous because the IJ questioned
Petitioner at length about the inconsistency at issue.
Because Petitioner’s due process argument is “so
insubstantial and frivolous as to be inadequate to invoke
[our] federal-question jurisdiction,” the petition for
review is dismissed with respect to this argument.
Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008).
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part. As we have completed
our review, the pending motion for a stay of removal in this
petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6