Filed: Oct. 28, 2010
Latest Update: Feb. 21, 2020
Summary: 09-3322-ag You v. Holder BIA Sichel, IJ A095 687 416 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
Summary: 09-3322-ag You v. Holder BIA Sichel, IJ A095 687 416 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..
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09-3322-ag
You v. Holder
BIA
Sichel, IJ
A095 687 416
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.
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 28th day of October, two thousand ten.
PRESENT:
REENA RAGGI,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
Ting You,
Petitioner,
v. 09-3322-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Gang Zhou, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; Richard M.
Evans , Assistant Director; Andrew
Oliveira, Trial Attorney, Office of
Immigration Litigation, Civil
Division, 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.
Ting You, a native and citizen of China, seeks review
of a July 14, 2009 order of the BIA, affirming the November
2, 2007 decision of Immigration Judge (“IJ”) Helen Sichel,
which denied You’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”), and his motion to remand. In re Tin You, No. A095
687 416 (B.I.A. July 14, 2009), aff’g No. A095 687 416
(Immig. Ct. N.Y. City Nov. 2, 2007). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See 8
U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510,
513-14 (2d Cir. 2009).
I. Asylum, Withholding of Removal, and CAT Relief
Substantial evidence supports the IJ’s adverse
credibility determination. The IJ reasonably relied on an
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inconsistency between (1) You’s testimony, in which he
stated that he was by himself when he distributed Falun Gong
flyers, and (2) his father’s letter, which indicated that he
and his son had distributed the flyers together. This
inconsistency is material because it pertains to the single
event for which You claims he was persecuted. See Secaida-
Rosales v. INS, 331 F.3d 297, 307-09 (2d Cir. 2003). In
addition, the IJ identified several additional discrepancies
that, cumulatively, further undermined You’s credibility.
See Tu Lin v. Gonzales,
446 F.3d 395, 402 (2d Cir. 2006).
These included an internal inconsistency in You’s testimony
regarding whether a smuggler had arranged You’s flight from
China to the United States, and an implicit inconsistency
between You’s testimony, which asserted that his father had
been arrested numerous times for practicing and supporting
Falun Gong, and his father’s letter, which failed to mention
multiple arrests. To the extent You offered explanations
for these discrepancies, the IJ was not required to credit
them. See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir.
2005).
Thus, while the record support for other identified
inconsistencies might be questioned, we conclude that these
3
discrepancies supported by the record cumulatively
undermined You’s credibility. See Liang Chen v. U.S. Att'y
Gen., 454 F.3d 103, 106-107 (2d Cir. 2006). Accordingly,
remand on account of the erroneous findings would be futile
because we can “confidently predict” that the IJ would reach
the same decision absent the errors that were made. Xiao Ji
Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 339 (2d Cir.
2006).
Because petitioner based his withholding of removal and
CAT claim on the same factual predicate as his asylum claim,
the IJ’s adverse credibility determination was fatal to all
three claims. See Paul v. Gonzales, 444 F.3d 148, 156-57
(2d Cir. 2006).
II. Motion to Remand
You filed a motion to remand before the BIA based on
changed circumstances: he now belongs to the Falun Gong
movement, his father has promised to assist the government
in arresting his son if You returns to China, and conditions
in China have worsened for Falun Gong practitioners. We
review the BIA’s denial of a motion to remand for abuse of
discretion. See Li Yong Cao v. U.S. Dep't of Justice, 421
F.3d 149, 157 (2d Cir. 2005).
4
We identify no abuse here because the BIA denial was
reasonably based on the IJ’s underlying adverse credibility
determination, see Qin Wen Zheng v. Gonzales, 500 F.3d 143,
146-48 (2d. Cir. 2007); You’s failure to establish material
changed country conditions; and You’s failure to offer
evidence that was new and previously unavailable, see 8
C.F.R. § 1003.2(c)(1); INS v. Abudu,
485 U.S. 94, 104-05
(1988).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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