11-1634-ag
Ou v. Holder
BIA
Abrams, IJ
A088 782 035
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 15th day of March, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 MING OU, AKA, MING REN,
14 Petitioner,
15
16 v. 11-1634-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Yee Ling Poon, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Ernesto H. Molina, Jr.,
27 Assistant Director; Jamie M. Dowd,
28 Senior Litigation Counsel, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
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 Ming Ou, a native and citizen of the People’s Republic
6 of China, seeks review of a March 31, 2011 order of the BIA,
7 affirming the June 4, 2009 decision of an Immigration Judge
8 (“IJ”), which denied his application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Ming Ou, No. A088 782 035 (B.I.A. Mar. 31,
11 2011), aff’g No. A088 782 035 (Immig. Ct. N.Y. City June 4,
12 2009). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the IJ’s decision as the final agency determination. See
16 Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006). The
17 applicable standards of review are well established.
18 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
19 F.3d 510, 513 (2d Cir. 2009).
20 For asylum applications, such as this one, governed by
21 the REAL ID Act, the agency may, considering the totality of
22 the circumstances, base a credibility finding on an asylum
23 applicant’s demeanor, the plausibility of his or her
2
1 account, and inconsistencies in his or her statements,
2 without regard to whether they go “to the heart of the
3 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
4 Substantial evidence supports the IJ’s adverse credibility
5 determination here.
6 In finding Ou not credible, the IJ reasonably relied on
7 an inconsistency between Ou’s testimony and a letter signed
8 by his pastor and minister regarding the date on which Ou
9 started attending the Church of Grace in the United States.
10 See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
11 2008). A reasonable fact finder would not be compelled to
12 credit Ou’s explanations for these inconsistencies. See
13 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
14 The IJ also reasonably relied on inconsistencies between
15 Ou’s testimony and that of his witness with regard to
16 whether Ou ever attended services at the Church of Grace’s
17 Brooklyn, New York location, when Ou first became involved
18 in Christianity, and whether he attended any church services
19 prior to his membership in an underground church in China.
20 Although Ou argues that these inconsistencies were too minor
21 to support an adverse credibility determination, “an IJ may
22 rely on any inconsistency or omission in making an adverse
3
1 credibility determination as long as the ‘totality of the
2 circumstances’ establishes that an asylum applicant is not
3 credible.” Xiu Xia Lin, 534 F.3d at 167.
4 Ou also argues that the IJ erred in failing to give him
5 the opportunity to explain non-obvious inconsistencies
6 between his testimony and that of his witness. The IJ may
7 not rest an adverse credibility finding on a non-dramatic,
8 putative inconsistency without first putting the applicant
9 on notice and giving the applicant a chance to reconcile the
10 testimony. See Ming Shi Xue v. BIA, 439 F.3d 111, 125 (2d
11 Cir. 2006). Here, as the IJ reasonably found, the
12 inconsistencies between Ou’s testimony and that of his
13 witness were not minor, as they directly pertained to when
14 Ou became a Christian, whether Ou openly practiced
15 Christianity in China at any time prior to his membership in
16 an underground church, and whether and to what extent Ou
17 practiced Christianity in the United States. Accordingly,
18 the IJ was not required to specifically request an
19 explanation for the inconsistencies between Ou’s testimony
20 and that of his witness. Ming Shi Xue, 439 F.3d at 122
21 n.13.
22
4
1 Furthermore, the IJ reasonably relied on Ou’s failure
2 to present adequate corroboration to support his claim that
3 he had been detained, beaten, and fined because of his
4 membership in an underground Christian church in China. See
5 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
6 Finally, a reasonable fact-finder would not be compelled to
7 conclude that the IJ ignored any material evidence, as the
8 record indicates that the IJ was aware of the letter from
9 Ou’s friend. See Jian Hui Saho v. Mukasey, 546 F.3d 138,
10 169 (2d Cir. 2008); see also Xiao Ji Chen v. U.S. Dep’t of
11 Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006). Although
12 the IJ erred in finding Ou had testified that he did not
13 attend church in China after his arrest, remand would be
14 futile because there is little doubt that the agency would
15 find Ou not credible absent any errors. See Cao He Lin v.
16 U.S. Dep’t of Justice, 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 regarding the
19 inconsistencies in the record and regarding Ou’s failure to
20 rehabilitate his testimony with corroborating evidence, the
21 adverse credibility determination was supported by
22 substantial evidence. See Xiu Xia Lin, 534 F.3d at 165-66.
23 The adverse credibility determination is dispositive of Ou’s
5
1 claims for asylum and withholding of removal, as both claims
2 were based on the same factual predicate. See Paul v.
3 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
6