Filed: Feb. 08, 2011
Latest Update: Feb. 21, 2020
Summary: 09-4670-ag Lian v. Holder BIA Van Wyke, IJ A099 025 415 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: 09-4670-ag Lian v. Holder BIA Van Wyke, IJ A099 025 415 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 ..
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09-4670-ag
Lian v. Holder
BIA
Van Wyke, IJ
A099 025 415
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 8th day of February, two thousand eleven.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT D. SACK,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 Zhi Xin Lian,
14 Petitioner,
15
16 v. 09-4670-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Sheema Chaudhry, Law Offices of Michael
24 Brown, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney General;
27 Richard M. Evans, Assistant Director;
28 Sharon M. Clay, Trial Attorney, Office of
29 Immigration Litigation, Civil Division,
30 United States Department of Justice,
1 Washington, D.C.
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DENIED.
6 Petitioner Zhi Xin Lian, a native and citizen of China,
7 seeks review of an October 15, 2009, order of the BIA
8 affirming the October 17, 2007, decision of Immigration
9 Judge (“IJ”) William Van Wyke denying Lian’s application for
10 asylum, withholding of removal, and relief under the
11 Convention Against Torture (“CAT”). In re Zhi Xin Lian, No.
12 A099 025 415 (B.I.A. Oct. 15, 2009), aff’g No. A099 025 415
13 (Immig. Ct. N.Y. City Oct. 17, 2007). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 Under the circumstances of this case, we review the
17 IJ’s decision as supplemented by the BIA’s decision. See
18 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We
19 affirm the agency’s factual findings, including its
20 credibility determinations, if they are supported by
21 substantial evidence. See Ascencio-Rodriguez v. Holder, 595
22 F.3d 105, 110 (2d Cir. 2010).
23 Substantial evidence supports the agency’s adverse
2
1 credibility determination. See Yanquin Weng, 562 F.3d at
2 513. Under the REAL ID Act, which applies to Liu’s
3 application for relief, “an IJ may rely on any inconsistency
4 or omission in making an adverse credibility determination
5 as long as the ‘totality of the circumstances’ establishes
6 that an asylum applicant is not credible.” Xiu Xia Lin v.
7 Mukasey,
534 F.3d 162, 167 (2d Cir. 2008) (emphasis in
8 original).
9 Here, the IJ noted the discrepancy between Lian's
10 statements during his initial airport credible fear
11 interviews, in which he stated that he feared persecution
12 under China’s family planning policy, and his asylum
13 application and testimony before the IJ, in which he
14 asserted that he feared persecution as a Falun Gong
15 practitioner. The IJ reasonably relied on this
16 inconsistency, as there has been no showing that the airport
17 interview was so unreliable that it should not be considered
18 part of the record, see Ramsameachire v. Ashcroft,
357 F.3d
19 169, 180 (2d Cir. 2004), and the inconsistency is dramatic,
20 see
id. at 180-81 (“Where the alien’s airport statements and
21 his or her later testimony present materially different
22 accounts of his or her purported persecution, however, the
3
1 inconsistencies may render the alien’s testimony
2 incredible.”).
3 The IJ also noted inconsistencies between the testimony
4 of Lian’s witness, Yuan, and Lian’s own testimony, and found
5 that those inconsistencies adversely affected Lian’s
6 credibility. Lian concedes that there were inconsistencies,
7 but argues that the IJ erred in relying on them because the
8 inconsistencies were minor. However, an IJ may “rely on any
9 inconsistency . . . as long as the ‘totality of the
10 circumstances’ establishes that an asylum applicant is not
11 credible.” Xiu Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C.
12 § 1158(b)(1)(B)(iii)) (emphasis in original). Thus, the
13 inconsistencies between Yuan’s testimony and Lian’s
14 testimony were properly considered in evaluating Lian's
15 credibility as part of the totality of the circumstances.
16 Finally, the IJ found that Liu’s credibility was
17 undermined by his demeanor, which the IJ described as
18 “hesitant,” unemotional, and weak, such that his testimony
19 “sounded contrived.” We defer to the IJ on this assessment,
20 see Majidi v. Gonzales,
430 F.3d 77, 81 n. 1 (2d Cir. 2005),
21 mindful of his unique advantage in hearing directly from the
22 asylum applicant, see Zhou Yun Zhang v. INS,
386 F.3d 66, 73
4
1 (2d Cir. 2004), overruled on other grounds by Shi Liang Lin
2 v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007) (en
3 banc).
4 Ultimately, the discrepancies the IJ identified and his
5 assessment of Lian’s demeanor provide substantial evidence
6 for his adverse credibility determination. See 8 U.S.C.
7 § 1158(b)(1)(B)(iii). Because Lian’s claims for asylum,
8 withholding of removal, and relief under the CAT were based
9 on the same factual predicate, the agency’s adverse
10 credibility determination forecloses all three forms of
11 relief. See Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir.
12 2006).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
5
