11-1300-ag
Dong v. Holder
BIA
Abrams, IJ
A088 779 633
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 22nd day of December, two thousand nine.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 AIDONG DONG,
14 Petitioner,
15
16 v. 11-1300-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, Civil Division; John S.
27 Hogan, Senior Litigation Counsel,
28 Office of Immigration Litigation;
1 David H. Westmore, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Aidong Dong, a native and citizen of the People’s
11 Republic of China, seeks review of a March 11, 2011 order of
12 the BIA, affirming the July 15, 2009 decision of Immigration
13 Judge (“IJ”) Steven R. Abrams, which denied Dong’s
14 application for asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re Aidong
16 Dong, No. A088 779 633 (B.I.A. Mar. 11, 2011), aff’g No.
17 A088 779 633 (Immig. Ct. N.Y. City July 15, 2009). We
18 assume the parties’ familiarity with the underlying facts
19 and procedural history in this case.
20 Under the circumstances of this case, we have reviewed
21 both the BIA's and IJ's opinions. Yun-Zui Guan v. Gonzales,
22 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards
23 of review are well established. See 8 U.S.C.
24 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
25 (2d Cir. 2009).
2
1 For asylum applications, such as this one, governed by
2 the REAL ID Act, the agency may, considering the totality of
3 the circumstances, base a credibility finding on an asylum
4 applicant’s demeanor, the plausibility of his or her
5 account, and inconsistencies in his or her statements,
6 without regard to whether they go “to the heart of the
7 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
8 Analyzed under the REAL ID Act, substantial evidence
9 supports the agency’s adverse credibility determination.
10 In finding Dong not credible, the agency reasonably
11 relied in part on her demeanor, finding that Dong provided
12 varied explanations as to why she went into hiding three
13 months after realizing that she was pregnant, and that this
14 portion of her testimony seemed to develop as she testified.
15 See Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).
16 The IJ’s finding with regard to Dong’s demeanor was further
17 supported by a specific example of an inconsistency between
18 her testimony and asylum application as to the reason she
19 refused to pay the entire amount of a fine assessed by
20 family planning officials due to her alleged violation of
21 China’s family planning policy. See Li Hua Lin v. U.S.
22 Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006). A
3
1 reasonable fact-finder would not be compelled to credit
2 Dong’s explanations for this inconsistency. Majidi, 430
3 F.3d at 80-81. Furthermore, the IJ reasonably found
4 implausible that, between the time Dong returned from South
5 Africa in July 2005 and went into hiding in April 2006,
6 family planning officials did not inquire as to why she
7 failed to attend her regularly-scheduled gynecological
8 examinations, and that despite learning that she was
9 pregnant in January 2006, Dong chose not to hide from family
10 planning officials until April 2006. See 8 U.S.C. §
11 1158(b)(1)(B)(iii); see also Siewe v. Gonzales, 480 F.3d
12 160, 168-69 (2d Cir. 2007). Although the IJ’s decision is
13 not without flaw, remand would be futile because we have
14 little doubt that the agency would find Dong not credible
15 absent any errors. See Cao He Lin v. U.S. Dep’t of Justice,
16 428 F.3d 391, 401 (2d Cir. 2005).
17 Ultimately, because a reasonable fact-finder would not
18 be compelled to conclude to the contrary, the IJ’s adverse
19 credibility determination was supported by substantial
20 evidence. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166.
21 The agency’s denial of Dong’s application for asylum,
22 withholding of removal, and CAT relief was not in error as
4
1 all three claims shared the same factual predicate. See
2 Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006)
3 (withholding of removal); Xue Hong Yang v. U.S. Dep’t of
4 Justice, 426 F.3d 520, 523 (2d Cir. 2005) (CAT).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
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