09-5049-ag
    Yang v. Holder


                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

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         At a stated term of the United States Court of                 Appeals
    for the Second Circuit, held at the Daniel Patrick                 Moynihan
    United States Courthouse, 500 Pearl Street, in the                 City of
    New York, on the 30 th day of November, two thousand               ten.

    PRESENT:
             ROGER J. MINER,
             JOSEPH M. McLAUGHLIN,
             ROBERT A. KATZMANN,
                    Circuit Judges.
    _______________________________________

    JIAN XIN YANG,
             Petitioner,

                     v.                                    09-5049-ag
                                                           NAC
    ERIC H. HOLDER, JR.,
    U.S. ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Edward T. Giuliano, New York, N.Y.

    FOR RESPONDENT:               Ilissa M. Gould, Trial Attorney,
                                  Office of Immigration Litigation,
                                  for Tony West, Assistant Attorney
                                  General; Leslie McKay, Assistant
                                  Director; 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 Jian Xin Yang, a native and citizen of the

People’s Republic of China, seeks review of a November 19,

2009 order of the BIA affirming the January 18, 2008

decision of Immigration Judge (“IJ”) Noel A. Ferris, denying

his application for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”).   In re

Jian Xin Yang, No. A099 532 376 (B.I.A. Nov. 19, 2009),

aff’g No. A099 532 376 (Immig. Ct. N.Y. City Jan. 18, 2008).

We assume the parties’ familiarity with the underlying facts

and procedural history of this case.

    On appeal, Yang challenges the IJ’s adverse credibility

determination.   He contends that the IJ erred in finding

that his testimony was inconsistent with his asylum

application and that he omitted information from his

application.

    “We review the agency’s factual findings, including

adverse credibility determinations, under the substantial

evidence standard, treating them as ‘conclusive unless any

reasonable adjudicator would be compelled to conclude to the

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contrary.’” Xiu Xia Lin v. Mukasey, 

, 165 (2d

Cir. 2008)(quoting 8 U.S.C. § 1252(b)(4)(B)). “When

evaluating credibility determinations for substantial

evidence, we afford ‘particular deference’ to the IJ.”     

(quoting Zhou Yun Zhang v. INS, 

, 73

(2d Cir. 2004)). “We must assess whether the IJ has provided

‘specific, cogent reasons for the adverse credibility

finding and whether those reasons bear a legitimate nexus to

the finding.’” 

Yun 

).

“Where the IJ’s adverse credibility finding is based on

specific examples of inconsistent statements or

contradictory evidence, a reviewing court will generally not

be able to conclude that a reasonable adjudicator was

compelled to find otherwise.” 

marks

and punctuation omitted).   In the circumstances of this

case, we review the IJ’s decision as supplemented by the

BIA’s decision.   See Yan Chen v. Gonzales, 

, 271

(2d Cir. 2005).

    In connection with asylum applications governed by the

REAL ID Act, the agency may make a credibility finding based

upon an applicant’s “demeanor, candor, or responsiveness,”

the plausibility of his or her account, and inconsistencies


                              3
in his or her statements, without regard to whether they go

“to the heart of the applicant’s claim.”    See 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia 

.    Here,

we defer to the IJ’s determination that Yang’s

“uncomfortable,” “hesitant,” and “evasive” demeanor

undermined his credibility.    See Majidi v. Gonzales, 

, 81 n.1 (2d Cir. 2005) (explaining that this Court

generally defers to credibility determinations that are

based on an alien’s demeanor and that IJs have “the unique

advantage . . . of having heard directly from the

applicant”); see also Shu Wen Sun v. Bd. of Immigration

Appeals, 

, 380-81 (2d Cir. 2007).

     We likewise find no error in the IJ’s determination

that Yang’s credibility was undermined by his admission that

he lied about his employment history in his asylum

application. 1   See Siewe v. Gonzales, 

, 170 (2d

Cir. 2007) (finding that once an IJ concludes that a

document is false, he or she is “free to deem suspect other


       1
         The IJ found also that Yang’s asylum application
  was frivolous on the ground that he knowingly made a
  false statement therein. Yang, however, fails to
  challenge that finding before this Court and,
  consequently, we deem any such argument waived. See
  Yueqing Zhang v. Gonzales, 

, 545 n.7 (2d Cir.
  2005).

                               4
documents (and to disbelieve other testimony) that depend

for probative weight upon [the applicant’s] veracity”).

    Moreover, the BIA identified numerous discrepancies in

the record regarding the timing and circumstances of Yang’s

marriage, his wife’s abortion, and his subsequent receipt of

a fine notice and his inability to explain how he and his

wife violated Chinese family planning policy.     See 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia 

.     Yang

does not contest that these inconsistencies appear in the

record.     These discrepancies supported the IJ’s finding that

Yang was not credible.     See 8 U.S.C. § 1158(b)(1)(B)(iii);

Majidi v. Gonzales, 

, 80-81 (2d Cir. 2005).

    We conclude that the IJ’s adverse credibility

determination was supported by substantial evidence in view

of her findings regarding Yang’s demeanor, the false

statement in Yang’s asylum application, and numerous

inconsistencies in the record. Because Yang’s asylum,

withholding of removal, and CAT claims share the same

“factual basis,”     Paul v. Gonzales, 

, 156 (2d

Cir. 2006), that determination is dispositive of Yang’s

petition.     See id.; Xue Hong Yang v. U.S. Dep’t of Justice,

, 523 (2d Cir. 2005).


                                5
    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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