Aidong Dong v. Holder

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 5