Zhi Kai Tian v. Holder

11-2082-ag Tian v. Holder BIA Van Wyke, IJ A098 994 590 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 3rd day of May, two thousand twelve. 5 6 PRESENT: 7 PETER W. HALL, 8 GERARD E. LYNCH, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 ZHI KAI TIAN, 14 Petitioner, 15 16 v. 11-2082-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; Luis E. Perez, Senior 27 Litigation Counsel; Elizabeth D. 28 Kurlan, Trial Attorney, Office of 29 Immigration Litigation, U.S. 30 Department of Justice, Washington 31 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 Petitioner Zhi Kai Tian, a native and citizen of China, 6 seeks review of the April 27, 2011, decision of the BIA 7 affirming the June 1, 2009, decision of Immigration Judge 8 (“IJ”) William Van Wyke, denying Zhi Kai Tian’s application 9 for asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”). In re Zhi Kai Tian, No. 11 A098 994 590 (B.I.A. Apr. 27, 2011), aff’g No. A098 994 590 12 (Immig. Ct. N.Y. City June 1, 2009). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 in this case. 15 Under the circumstances of this case, we review both 16 the IJ’s and the BIA’s opinions “for the sake of 17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 18 2008) (internal quotation marks omitted). The applicable 19 standards of review are well established. See 8 U.S.C. 20 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 21 162, 165-66 (2d Cir. 2008). For asylum applications 22 governed by the REAL ID Act, such as the application in this 2 1 case, the agency may, considering the totality of the 2 circumstances, base a credibility finding on an asylum 3 applicant’s demeanor, the plausibility of his account, and 4 inconsistencies in his statements and other record evidence, 5 without regard to whether they go “to the heart of the 6 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 7 Lin, 534 F.3d at 163-64. 8 Substantial evidence supports the agency’s adverse 9 credibility determination. In finding Tian not credible, 10 the IJ reasonably relied in part on Tian’s hesitant and 11 unresponsive demeanor while testifying. See 8 U.S.C. 12 § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d 13 77, 81 n.1 (2d Cir. 2005). The IJ’s demeanor finding was 14 further supported by specific examples of contradictory 15 testimony. See Li Hua Lin v. U.S. Dep’t of Justice, 453 16 F.3d 99, 109 (2d Cir. 2006) (“We can be still more confident 17 in our review of observations about an applicant’s demeanor 18 where, as here, they are supported by specific examples of 19 inconsistent testimony.”). Indeed, the IJ reasonably found 20 discrepancies between Tian’s testimony and a letter from his 21 mother, for which Tian was unable to provide a compelling 22 explanation. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also 3 1 Majidi, 430 F.3d at 80-81. Thus, we find no error in the 2 IJ’s denial of Tian’s application for asylum, withholding of 3 removal, and CAT relief on credibility grounds. See Paul v. 4 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). 5 For the foregoing reasons, the petition for review is 6 DENIED. As we have completed our review, petitioner’s 7 pending motion for a stay of removal in this petition is 8 DENIED as moot. 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 4