Zhi Yung Tian v. Holder

08-3174-ag Tian v. Holder BIA Videla, IJ A079 683 166 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 22 nd day of January, two thousand ten. 5 6 PRESENT: 7 RALPH K. WINTER, 8 PIERRE N. LEVAL, 9 JOSÉ A. CABRANES, 10 Circuit Judges. 11 12 _______________________________________ 13 14 ZHI YUNG TIAN, 15 Petitioner, 16 17 v. 08-3174-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, * 21 Respondent. 22 _______________________________________ 23 24 25 * 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. 1 FOR PETITIONER: Michael Brown, New York, New York. 2 3 FOR RESPONDENT: Michael F. Hertz, Assistant Attorney 4 General; Terri J. Scadron, Assistant 5 Director; Wendy Benner-León, 6 Attorney, Office of Immigration 7 Litigation, United States Department 8 of Justice, Washington, D.C. 9 10 UPON DUE CONSIDERATION of this petition for review of a 11 Board of Immigration Appeals (“BIA”) decision, it is hereby 12 ORDERED, ADJUDGED, AND DECREED, that the petition for review 13 is DENIED. 14 Zhi Yung Tian, a native and citizen of the People’s 15 Republic of China, seeks review of a June 5, 2008 order of 16 the BIA, affirming the August 12, 2005 decision of 17 Immigration Judge (“IJ”) Gabriel C. Videla, which denied his 18 application for asylum, withholding of removal, and relief 19 under the Convention Against Torture (“CAT”). In re Zhi 20 Yung Tian, No. A079 683 166 (B.I.A. June 5, 2008), aff’g No. 21 A079 683 166 (Immig. Ct. N.Y. City Aug. 12, 2005). We 22 assume the parties’ familiarity with the underlying facts 23 and procedural history in this case. 24 We review the agency’s factual findings, including 25 adverse credibility findings, under the substantial evidence 26 standard. See 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen 27 Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007). We review de 2 1 novo questions of law and the application of law to 2 undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 3 (2d Cir. 2008). 4 The only issue before us in this case is whether the 5 agency’s adverse credibility determination was supported by 6 substantial evidence. The agency found that Tian failed to 7 demonstrate that he was eligible for asylum or withholding 8 of removal based on past persecution. Tian claimed that he 9 was detained, beaten, and fined for violating the family 10 planning policy. Tian waived any challenge to the agency’s 11 denial of his applications for asylum and withholding of 12 removal based on his claimed fear of future persecution for 13 failing to pay an outstanding family planning fine. His 14 conclusory argument fails to challenge the agency’s finding 15 that he failed to demonstrate such a fear of persecution 16 when his wife remained unharmed in China for several years 17 despite their alleged outstanding family planning fine. See 18 Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 19 2005). In addition, Tian abandoned any challenge to the 20 agency’s finding that he did not demonstrate his eligibility 21 for CAT relief by failing to raise any such challenge in his 22 brief. 23 Substantial evidence supports the agency’s finding that 3 1 Tian was not credible as to his claim that he suffered 2 persecution when he was detained, beaten, and fined for 3 having violated the family planning policy. In finding him 4 not credible, the IJ reasonably relied on the implausibility 5 of Tian’s assertion that his wife returned home from hiding 6 to attend mandatory family planning examinations as well as 7 his confusing testimony regarding family planning officials’ 8 discovery of the birth of his second daughter. See Wensheng 9 Yan v. Mukasey, 509 F.3d 63, 66-67 (2d Cir. 2007); see also 10 Ying Li v. BCIS, 529 F.3d 79, 82 (2d Cir. 2008). 11 The IJ also reasonably found Tian not credible based in 12 part on the inconsistency between his statement in his 13 initial asylum application that his wife had been forcibly 14 aborted and his amended application and subsequent testimony 15 that his wife had not suffered such harm. See Borovikova v. 16 U.S. Dep’t of Justice, 435 F.3d 151, 158-60 (2d Cir. 2006). 17 In fact, Tian testified under oath that he was familiar with 18 the contents of his initial application for asylum and that 19 every statement in that application was correct and true. 20 Tian further admitted that the statement in his initial 21 asylum application that his wife had been forced to have an 22 abortion was read back to him by his attorney and that he 23 had not indicated that such fact was incorrect. In 4 1 addition, contrary to Tian’s argument, the record does not 2 indicate that the IJ erred in finding his attempted 3 amendment of his application belated because he waited 4 almost two years to file such correction. 5 In finding him not credible, the IJ also reasonably 6 relied on Tian’s failure to submit sufficient evidence 7 corroborating his claim that family planning officials had 8 detained and beaten him for not paying a fine. See Biao 9 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) 10 (recognizing that an applicant’s failure to corroborate his 11 or her testimony may bear on credibility because the absence 12 of corroboration in general makes an applicant unable to 13 rehabilitate testimony that has already been called into 14 question); see also Maladho Djehe Diallo v. Gonzales, 445 15 F.3d 624, 633-34 (2d Cir. 2006). 16 Ultimately, because a reasonable fact-finder would not 17 be compelled to conclude to the contrary, the IJ’s adverse 18 credibility determination was supported by substantial 19 evidence. See Shu Wen Sun, 510 F.3d at 379. Thus, the 20 agency reasonably denied Tian’s applications for asylum and 21 withholding of removal insofar as they were based on his 22 claim that he had suffered past persecution when he was 23 detained and beaten for violating the family planning 24 policy. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 5 1 2006) (recognizing that a withholding of removal claim 2 necessarily fails if the applicant is unable to show the 3 objective likelihood of persecution needed to make out an 4 asylum claim and the factual predicate for the claims is the 5 same). 6 For the foregoing reasons, the petition for review is 7 DENIED. As we have completed our review, any stay of 8 removal that the Court previously granted in this petition 9 is VACATED, and any pending motion for a stay of removal in 10 this petition is DISMISSED as moot. Any pending request for 11 oral argument in this petition is DENIED in accordance with 12 Federal Rule of Appellate Procedure 34(a)(2), and Second 13 Circuit Local Rule 34(b). 14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16 17 18 6