Filed: Jun. 02, 2011
Latest Update: Feb. 22, 2020
Summary: 10-3756-ag Yang v. Holder BIA Nelson, IJ A088 805 110 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
Summary: 10-3756-ag Yang v. Holder BIA Nelson, IJ A088 805 110 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 NO..
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10-3756-ag
Yang v. Holder
BIA
Nelson, IJ
A088 805 110
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 2nd day of June, two thousand eleven.
5
6 PRESENT:
7 ROGER J. MINER,
8 GUIDO CALABRESI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 SUHUA YANG,
14 Petitioner,
15
16 v. 10-3756-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: John Z. Zhang, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; John S. Hogan, Senior
27 Litigation Counsel; Kiley L. Kane,
28 Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Petitioner Suhua Yang, a native and citizen of the
6 People’s Republic of China, seeks review of a August 24,
7 2010 order of the BIA affirming the November 6, 2008
8 decision of Immigration Judge (“IJ”) Barbara A. Nelson,
9 denying Yang’s application for asylum, withholding of
10 removal, and relief under the Convention Against Torture
11 (“CAT”). In re Suhua Yang, No. A088 805 110 (B.I.A. Aug.
12 24, 2010), aff’g No. A088 805 110 (Immigr. Ct. N.Y. City
13 Nov. 6, 2008). We assume the parties’ familiarity with the
14 underlying facts and procedural history of the case.
15 Under the circumstances of this case, we have reviewed
16 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v.
17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
18 standards of review are well-established. See 8 U.S.C.
19 § 1252(b)(4)(B) (2006); see also Xiu Xia Lin v. Mukasey, 534
20 F.3d 162, 165–66 (2d Cir. 2008); Salimatou Bah v. Mukasey,
21
529 F.3d 99, 110 (2d Cir. 2008).
22 Substantial evidence supports the agency’s conclusion
23 that Yang was not credible. As the IJ found, although Yang
2
1 asserted in her asylum application that her brother was
2 arrested, both her brother’s letter and her testimony on
3 direct examination omitted this detail. The IJ was entitled
4 to rely on this discrepancy in finding Yang not credible.
5 See 8 U.S.C. § 1158(b)(1)(B)(iii) (2006); Xiu Xia Lin, 534
6 F.3d at 166–67 n.3 (noting that inconsistencies and
7 omissions are “functionally equivalent”).
8 Furthermore, the agency adequately considered Yang’s
9 explanations for her inconsistent testimony and reasonably
10 declined to credit the explanations. Yang explained that
11 her brother’s letter omitted details about the arrest
12 because he told her about the incident over the telephone.
13 Yang also explained that she omitted details about her
14 brother’s arrest on direct examination because she
15 understood “arrest” to mean sentenced and jailed, and that
16 because her brother had not been jailed, she did not
17 consider her brother being taken away by Chinese police as
18 an “arrest.” A reasonable fact-finder would not be
19 compelled to credit Yang’s explanations because her asylum
20 application explicitly provided that her brother was
21 detained and arrested, while the letter from Yang’s brother
22 discussed details of the incident in which police
23 interrupted their mother’s funeral, but did not include any
3
1 mention of his arrest, detention, or beating as asserted by
2 Yang. See Majidi v. Gonzales, 430 F.3d 77, 80–81 (2d Cir.
3 2005) (holding that an IJ need not credit an applicant’s
4 explanations for inconsistent testimony unless those
5 explanations would compel a reasonable fact-finder to do
6 so).
7 The adverse credibility determination is further
8 supported by the IJ’s demeanor finding, to which we give
9 particular deference, as the IJ relied on Yang’s evasive
10 testimony and lack of responsiveness as reflected in the
11 hearing transcripts. See
id. at 81 n.1 (holding that
12 particular deference is generally afforded to the agency’s
13 assessment of an applicant’s demeanor); see also Li Hua Lin
14 v. U.S. Dep’t of Justice,
453 F.3d 99, 109 (2d Cir. 2006)
15 (“We can be . . . more confident in our review of
16 observations about an applicant’s demeanor where . . . they
17 are supported by specific examples of inconsistent
18 testimony.”).
19 Accordingly, considering the totality of the
20 circumstances — Yang’s omissions and lack of responsiveness
21 — the agency’s credibility determination is supported by
22 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii)
23 (2006). Because the only evidence of a threat to Yang’s
4
1 life or freedom depended upon her credibility, the adverse
2 credibility determination in this case necessarily precludes
3 success on her claims for asylum, withholding of removal,
4 and CAT relief, as all three claims are based on the same
5 factual predicate. See Paul v. Gonzales, 444 F.3d 148,
6 155–56 (2d Cir. 2006). Because substantial evidence
7 supports the IJ’s adverse credibility determination, and
8 that determination is dispositive, we do not reach Yang’s
9 remaining arguments.
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
5
