Fang Ye v. Holder

11-1001
Ye v. Holder
BIA
Schoppert, IJ
A098 718 081
A098 718 307

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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 28th day of October, two thousand fourteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 PIERRE N. LEVAL,
10 Circuit Judges.
11 _____________________________________
12
13 FANG YE, BO XIN CHEN,
14 Petitioners,
15
16 v. 11-1001
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Troy Nader Moslemi, New York, New
25 York.
26
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 1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Douglas E. Ginsberg,
3 Assistant Director; Nicole Prairie,
4 Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a

10 Board of Immigration Appeals (“BIA”) decision, it is hereby

11 ORDERED, ADJUDGED, AND DECREED that the petition for review

12 is DENIED.

13 Petitioners Fang Ye and Bo Xin Chen, natives and

14 citizens of the People’s Republic of China, seek review of a

15 March 2, 2011, decision of the BIA, affirming the June 2,

16 2008, decision of Immigration Judge (“IJ”) Douglas B.

17 Schoppert, denying their application for asylum, withholding

18 of removal, and relief under the Convention Against Torture

19 (“CAT”). In re Fang Ye, Bo Xin Chen, Nos. A098 718 081,

20 A098 718 307 (B.I.A. Mar. 2, 2011), aff’g Nos. A098 718 081,

21 A098 718 307 (Immig. Ct. N.Y. City June 2, 2008). We assume

22 the parties’ familiarity with the underlying facts and

23 procedural history of this case.

24 Under the circumstances of this case, we have reviewed

25 the decision of the IJ as supplemented by the BIA. See Yan

26 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

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 1 applicable standards of review are well established. See

2 8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey,

3 546 F.3d 138, 157-58 (2d Cir. 2008); Secaida-Rosales v. INS,

4 331 F.3d 297, 307 (2d Cir. 2003), superseded by statute,

5 REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, as

6 recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64

7 (2d Cir. 2008).

8 I. Past Persecution

9 In pre-REAL ID Act cases, such as this case, an adverse

10 credibility determination must be based on “specific, cogent

11 reasons” that “bear a legitimate nexus to the finding,” and

12 any discrepancy must be “substantial” when measured against

13 the record as a whole. See Secaida-Rosales, 331 F.3d at

14 307-08 (internal quotation marks and citations omitted).

15 Substantial evidence supports the agency’s determination

16 that petitioners were not credible as to their claim that

17 family planning officials had forced Ye to use an

18 intrauterine device (“IUD”) and had detained Chen for

19 resisting enforcement of China’s coercive population control

20 program.

21 Ye testified several times that she was coerced into

22 obtaining an IUD in September 2000, but later twice stated

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 1 that she obtained the IUD in August 2000 and indicated that

2 the September 2000 date on her corroborating government-

3 issued IUD certificate did not reflect the correct date. In

4 addition, Ye and Chen testified inconsistently as to whether

5 Chen was at work, at home, or on his motorbike when family

6 planning officials detained him. Chen further made

7 discrepant statements regarding whether he saw the object

8 that officials used to harm him while he was detained.

9 Petitioners did not provide compelling explanations for

10 these inconsistencies. See Majidi v. Gonzales, 430 F.3d 77,

11 80 (2d Cir. 2005).

12 Because these inconsistencies related to the heart of

13 petitioners’ claim of past persecution, the agency’s adverse

14 credibility determination is supported by substantial

15 evidence. See Secaida-Rosales, 331 F.3d at 307-08; see also

16 Liang Chen v. U.S. Attorney Gen., 454 F.3d 103, 106-07 (2d

17 Cir. 2006).

18 II. Well-Founded Fear of Persecution

19 For largely the same reasons as this Court set forth in

20 Jian Hui Shao, 546 F.3d 138, we find no error in the

21 agency’s determination that petitioners failed to

22 demonstrate their eligibility for relief based on their fear

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 1 of future persecution for their alleged violation of China’s

2 coercive population control program. See id. at 158-72.

3 For the foregoing reasons, the petition for review is

4 DENIED. As we have completed our review, any stay of

5 removal that the Court previously granted in this petition

6 is VACATED, and any pending motion for a stay of removal in

7 this petition is DISMISSED as moot. Any pending request for

8 oral argument in this petition is DENIED in accordance with

9 Federal Rule of Appellate Procedure 34(a)(2), and Second

10 Circuit Local Rule 34.1(b).

11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14

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