Filed: Sep. 27, 2011
Latest Update: Feb. 22, 2020
Summary: 10-2708-ag BIA Ou v. Holder Ferris, IJ A096 401 483 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 NOT
Summary: 10-2708-ag BIA Ou v. Holder Ferris, IJ A096 401 483 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 NOTA..
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10-2708-ag BIA
Ou v. Holder Ferris, IJ
A096 401 483
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 27th day of September, two thousand eleven.
5
6 PRESENT:
7 JOSEPH M. MCLAUGHLIN,
8 GUIDO CALABRESI,
9 RICHARD C. WESLEY,
10
11 Circuit Judges.
12 _______________________________________
13
14 Wen Bin Ou,
15 Petitioner,
16
17 v. 10-2708-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Dehai Zhang, Flushing, New York
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Jennifer Williams, Senior
28 Litigation Counsel; Lance L. Jolley,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
33
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 Wen Bin Ou, a native and citizen of China, seeks review
6 of a June 16, 2010, decision of the BIA affirming the July
7 30, 2008, decision of Immigration Judge (“IJ”) Noel A.
8 Ferris, which denied his application for relief under the
9 Convention Against Torture (“CAT”). In re Wen Bin Ou, No.
10 A096 401 483 (B.I.A. June 16, 2010), aff’g No. A096 401 483
11 (Immig. Ct. N.Y. City July 30, 2008). We assume the
12 parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we review the
15 decision of the IJ as supplemented by the BIA. See Yan Chen
16 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
17 applicable standards of review are well-established. See 8
18 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
19 F.3d 510, 513 (2d Cir. 2009).
20 For asylum applications governed by the amendments made
21 to the Immigration and Nationality Act by the REAL ID Act of
22 2005, the agency may, considering the totality of the
23 circumstances, base a credibility finding on an asylum
2
1 applicant’s “demeanor, candor, or responsiveness,” the
2 plausibility of his or her account, and inconsistencies in
3 his or her statements, without regard to whether they go “to
4 the heart of the applicant’s claim.” See 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
6 167 (2d Cir. 2008). We will “defer therefore to an IJ’s
7 credibility determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder
9 could make” such a ruling. Xiu Xia
Lin, 534 F.3d at 167.
10 In this case, the IJ’s adverse credibility
11 determination was not supported by substantial evidence
12 because the IJ relied solely on Ou’s demeanor as evidence of
13 his lack of credibility. Although we generally afford
14 particular deference to the IJ’s assessment of an
15 applicant’s demeanor, we have never held that a demeanor
16 finding alone can constitute substantial evidence in support
17 of an adverse credibility determination. See Li Hua Lin v.
18 U.S. Dep’t of Justice,
453 F.3d 99, 109 (2d Cir. 2006)
19 (noting that “[w]e can be . . . more confident in our review
20 of observations about an applicant’s demeanor where . . .
21 they are supported by specific examples of inconsistent
22 testimony”); see also Ramsameachire v. Ashcroft,
357 F.3d
3
1 169, 177-78 (2d Cir. 2004) (“Although credibility
2 determinations are entitled to the same deference on review
3 as other factual determinations, the fact that the BIA has
4 relied primarily on credibility grounds . . . cannot
5 insulate the decision from review.”). Here, the IJ failed
6 to pinpoint a single discrepancy, inconsistency, or omission
7 to support the adverse credibility finding.
8 Remand, however, would be futile in this case and is
9 not required because the agency’s alternative finding - that
10 Ou failed to meet his burden of proof for CAT relief - is
11 supported by substantial evidence. See Xiao Ji Chen v. U.S.
12 Dep’t of Justice,
471 F.3d 315, 338 (2d Cir. 2006) (remand
13 is futile where “it is clear that the agency would adhere to
14 its prior decision in the absence of error”).
15 The agency did not err in finding that Ou failed to
16 establish his eligibility for CAT relief because he did not
17 present any evidence indicating that it was more likely than
18 not that he would be tortured either by, or with the
19 acquiescence of, the Chinese government if he returned to
20 China. See Mu-Xing Wang v. Ashcroft,
320 F.3d 130, 143-44
21 (2d Cir. 2003). Ou failed to demonstrate that the Chinese
22 government tortures repatriated Chinese who have attempted
4
1 to illegally emigrate, and failed to offer a single piece of
2 evidence showing that he in particular would be tortured by
3 the Chinese government should he be repatriated. See Mu
4 Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d
5 Cir. 2005). Accordingly, the agency reasonably concluded
6 that Ou failed to establish that he would more likely than
7 not be tortured, either by, or with the acquiescence of, the
8 Chinese government should he return to China.
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
5
