11-2114 BIA
Han v. Holder Nelson, IJ
A089 262 894
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 14th day of May, two thousand thirteen.
PRESENT:
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
YOU HUA HAN,
Petitioner,
v. 11-2114
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Stephen J. Flynn, Assistant Director;
Jeffrey R. Meyer, Attorney, Office of
Immigration Litigation, United States
Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner You Hua Han, a native and citizen of the
People’s Republic of China, seeks review of an April 26, 2011,
decision of the BIA affirming the March 26, 2009, decision of
Immigration Judge (“IJ”) Barbara A. Nelson denying her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re You Hua
Han, No. A089 262 894 (B.I.A. Apr. 26, 2011), aff’g No. A089
262 894 (Immig. Ct. N.Y. City Mar. 26, 2009). We assume the
parties’ familiarity with the underlying facts and procedural
history of the case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions. See Jigme Wangchuck v.
DHS, 448 F.3d 524, 528 (2d Cir. 2006). The applicable
standards of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d
162, 165-66 (2d Cir. 2008).
Substantial evidence supports the agency’s determination
that Han did not testify credibly regarding her claim that she
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had been forced to undergo an abortion in 2001. For asylum
applications, like Han’s, governed by the REAL ID Act, the
agency may, considering the totality of the circumstances,
base a credibility finding on an asylum applicant’s demeanor,
the plausibility of her account, and inconsistencies in her or
her witness’s statements, without regard to whether they go
“to the heart of [her] claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
Xiu Xia Lin, 534 F.3d at 163-64. The agency reasonably relied
on inconsistencies in the record. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-
64, 166-67. The agency noted that Han’s direct testimony and
her husband’s letter were inconsistent with the testimony of
Han’s physician, Dr. Steven S. Ho, regarding the dates and
number of abortions Han had undergone. The agency also
correctly observed that Han’s testimony on cross examination
contradicted her direct testimony regarding the number of
abortions. When confronted with this inconsistency, Han
testified that she could not recall how many abortions she had
undergone. The IJ reasonably declined to credit that
explanation. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005) (finding that an agency need not credit an
applicant’s explanations unless those explanations would
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compel a reasonable fact-finder to do so). The agency also
reasonably relied on Han’s admission that she had lied to a
United States consular officer in order to obtain the visa
that allowed her to enter the United States to determine that
Han was not credible. See Rui Ying Lin v. Gonzales, 445 F.3d
127, 133 (2d Cir. 2006) (discussing the maxim of falsus in
uno, falsus in omnibus (false in one thing, false in
everything)); Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.
2007) (relying on the maxim to find that once an IJ concludes
that a document is false, he or she is “free to deem suspect
other documents (and to disbelieve other testimony) that
depend for probative weight upon [the applicant’s] veracity”).
The adverse credibility determination is further
bolstered by the IJ’s demeanor finding. Although Han argues
that the IJ’s observation of her demeanor is not supported by
the record, we give particular deference to the trier of
fact’s assessment of demeanor. See Majidi, 430 F.3d at 81
n.1. In finding Han not credible, the IJ reasonably relied in
part on her demeanor, noting that Han was “hesitant and
unresponsive” during portions of her testimony. Because the
IJ was in the best position to observe Han’s manner while
testifying, her partial demeanor finding should be afforded
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particular deference. See Zhou Yun Zhang v. INS, 386 F.3d 66,
73-74 (2d Cir. 2004), overruled on other grounds by Shi Liang
Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).
Han further argues that the agency erred in relying on
Dr. Ho’s testimony because it was hearsay, as he was reading
from her medical records. As we previously have determined,
“the Federal Rules of Evidence do not apply in removal
proceedings; rather, ‘[e]vidence is admissible provided that
it does not violate the alien’s right to due process of law.’”
Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008) (quoting
Zhen Nan Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 268 (2d
Cir. 2006)). The record reflects that Han was afforded due
process as her counsel was given the opportunity to question
Dr. Ho, and asked him about his practice with respect to
obtaining his patients’ medical histories.
Given the inconsistencies in the record and the deference
due to the IJ’s demeanor finding, the IJ’s adverse credibility
determination regarding Han’s claim that she suffered past
persecution was supported by substantial evidence. See
8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d
at 167 (explaining that this Court “defer[s] . . . to an IJ’s
credibility determination unless, from the totality of the
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circumstances, it is plain that no reasonable fact-finder
could make such an adverse credibility ruling”). Because Han
did not testify credibly regarding her past persecution, she
is not entitled to the presumption that she faces future
persecution in China. See 8 C.F.R. §§ 1208.13(b)(1),
1208.16(b)(1). Accordingly, the agency did not err in denying
asylum, withholding of removal, and CAT relief as all of the
claims were based on the same factual predicate. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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