Filed: Oct. 19, 2010
Latest Update: Feb. 21, 2020
Summary: 09-5114-ag Ni v. Holder BIA Schoppert, IJ A094 787 864 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
Summary: 09-5114-ag Ni v. Holder BIA Schoppert, IJ A094 787 864 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 N..
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09-5114-ag
Ni v. Holder
BIA
Schoppert, IJ
A094 787 864
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 19th day of October, two thousand ten.
5
6 PRESENT:
7 ROGER J. MINER,
8 JOSÉ A. CABRANES,
9 DENNY CHIN,
10 Circuit Judges.
11 ______________________________________
12
13 ZHOU TONG NI,
14 Petitioner,
15
16 v. 09-5114-ag
17 NAC
18 ERIC H. HOLDER, JR.,
19 UNITED STATES 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; John C. Cunningham, Senior
27 Litigation Counsel; John B. Holt,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice, Civil
31 Division, 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 Petitioner Zhou Tong Ni, a native and citizen of the
6 People’s Republic of China, seeks review of a November 17,
7 2009 decision and order of the BIA affirming the March 3,
8 2008 order of Immigration Judge (“IJ”) Douglas Schoppert,
9 denying Ni’s application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Zhou Tong Ni, No. A094 787 864 (BIA Nov. 17, 2009), aff’g
12 No. A094 787 864 (Immig. Ct. N.Y. City Mar. 3, 2008). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, where “the BIA
16 agrees with the IJ’s conclusion that a petitioner is not
17 credible . . . we review the IJ’s decision including the
18 portions not explicitly discussed by the BIA.” Yun-Zui Guan
19 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The
20 applicable standards of review are well-established. See 8
21 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d
22 162, 167 (2d Cir. 2008); Salimatou Bah v. Mukasey,
529 F.3d
2
1 99, 104 (2d Cir. 2008). Under the REAL ID Act, which
2 applies to Ni’s application for relief, “an IJ may rely on
3 any inconsistency or omission in making an adverse
4 credibility determination as long as the ‘totality of the
5 circumstances’ establishes that an asylum applicant is not
6 credible.” Xiu Xia
Lin, 534 F.3d at 167 (emphasis in
7 original); see In re: J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA
8 2007) (“[T]he REAL ID Act no longer requires the trier of
9 fact to find a nexus between inconsistencies and the ‘heart
10 of the claim’”).
11 Substantial evidence supports the agency’s adverse
12 credibility determination. See Xiu Xia
Lin, 534 F.3d at
13 167. The IJ reasonably found Ni not credible based on:
14 (1) a conflict between (a) Ni’s testimony that he was
15 arrested by five police officers while practicing Falun Gong
16 with six other people inside his parents’ home and (b) his
17 parents’ affidavit, which indicated that they first learned
18 of Ni’s arrest from a third person - indicating that Ni was
19 arrested while practicing Falun Gong at a location other
20 than his parents’ home; (2) both Ni’s and his sister’s
21 inconsistent testimony regarding how Ni obtained his
22 household registration document; (3) Ni’s inconsistent
3
1 testimony regarding how he obtained his birth certificate;
2 and (4) Ni’s demeanor. See Xiu Xia Lin, 534 F.3d at 167;
3 see also Siewe v. Gonzales,
480 F.3d 160, 169 (2d Cir. 2007)
4 (according deference to an IJ’s finding “[s]o long as an
5 inferential leap is tethered to the evidentiary record”).
6 We further find no error in the IJ’s refusal to credit the
7 inconsistent explanations Ni offered. See Majidi v.
8 Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005).
9 Moreover, contrary to Ni’s argument, the IJ reasonably
10 refused to accord evidentiary weight to photographs Ni
11 submitted because Ni was unable to identify the other
12 individuals in the photographs and because Ni admitted that
13 the pictures were taken solely for litigation purposes. See
14 Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 324 (2d
15 Cir. 2006) (finding that the weight afforded to the
16 applicant’s evidence in immigration proceedings lies largely
17 within the discretion of the agency).
18 Because Ni’s claims were all based on the same factual
19 predicate, the agency’s adverse credibility determination
20 was a proper basis for denial of his applications for
21 asylum, withholding of removal, and CAT relief. See Paul v.
22 Gonzales,
444 F.3d 148, 156 (2d Cir. 2006).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
13
5
