Filed: Jul. 20, 2010
Latest Update: Feb. 21, 2020
Summary: 09-4647-ag You v. Holder BIA Hom, IJ A073 226 653 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 NOTAT
Summary: 09-4647-ag You v. Holder BIA Hom, IJ A073 226 653 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 NOTATI..
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09-4647-ag
You v. Holder
BIA
Hom, IJ
A073 226 653
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 20 th day of July, two thousand ten.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 FENG ZHEN YOU,
14 Petitioner,
15
16 v. 09-4647-ag
17 NAC
18 ERIC H. HOLDER, Jr., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Edward J. Cuccia, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Francis W. Fraser, Senior
28 Litigation Counsel, Jacob A.
29 Bashyrov, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 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 Feng Zhen You, a native and citizen of the
6 People’s Republic of China, seeks review of an October 13,
7 2009, order of the BIA, affirming the April 15, 2008,
8 decision of Immigration Judge (“IJ”) Sandy K. Hom, denying
9 her application for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Feng Zhen You, No. A073 226 653 (B.I.A. Oct. 13, 2009),
12 aff’g No. A073 226 653 (Immig. Ct. N.Y. City Apr. 15, 2008).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history of the case.
15 Under the circumstances of this case, we review the
16 decision of the IJ as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). “We review
18 the agency's factual findings, including adverse credibility
19 determinations, under the substantial evidence standard,
20 treating them as ‘conclusive unless any reasonable
21 adjudicator would be compelled to conclude to the
22 contrary.’” Shu Wen Sun v. BIA,
510 F.3d 377, 379 (2d
23 Cir.2007), quoting 8 U.S.C. § 1252(b)(4)(B). Because You
24 filed her asylum application before May 11, 2005, the
2
1 amendments made to the Immigration and Nationality Act by
2 the REAL ID Act of 2005 do not apply to her asylum
3 application. See Pub. L. No. 109-13, § 101(h)(2), 119 Stat.
4 231, 305 (2005).
5 Substantial evidence supports the IJ’s adverse
6 credibility determination. The IJ found that: (1) although
7 You’s 1994 application stated that family planning officials
8 “dragged [her] to the abortion and sterilization operation,”
9 her 2007 application stated that, following a struggle with
10 family planning cadres, she fell down the stairs and had a
11 miscarriage; and (2) although You’s 2007 application stated
12 that she was prevented from registering her marriage because
13 she was underage, she was not under the legal age to marry
14 at that time. Although minor and isolated discrepancies may
15 be insufficient to support an adverse credibility finding,
16 see Diallo v. INS, 232 F.3d 279, 285-86 (2d Cir. 2000), the
17 multiple discrepancies here were not isolated, and related
18 to events at the heart of You’s claim – that she suffered
19 past persecution based on her violation of China’s family
20 planning policy.
21 We generally will not disturb adverse credibility
22 determinations that are based on “specific examples in the
3
1 record of inconsistent statements . . . about matters
2 material to [an applicant’s] claim of persecution, or on
3 contradictory evidence or inherently improbable testimony
4 regarding such matters.” Zhou Yun Zhang v. INS, 386 F.3d
5 66, 74 (2d Cir. 2004) (internal quotation marks omitted),
6 overruled in part on other grounds by Shi Liang Lin v. U.S.
7 Dep’t. of Justice,
494 F.3d 296, 305 (2d Cir. 2007) (en
8 banc). Contrary to You’s argument that the IJ should not
9 have relied on the inconsistent statements in her 1994
10 application, we have held that if the applicant’s statements
11 to an asylum officer and her later testimony present
12 materially different accounts of her purported persecution,
13 the inconsistencies may render her testimony incredible.
14 See Ramsameachire v. Ashcroft,
357 F.3d 169, 180-81 (2d Cir.
15 2004).
16 Additionally, the IJ was not required to credit You’s
17 explanation that, she did not know what was in her 1994
18 application because it was completed by a travel agency.
19 See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005).
20 The IJ thus reasonably relied on the cumulative effect of
21 the inconsistencies between You’s testimony and her written
22 statement to find her testimony unworthy of belief. See Tu
4
1 Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006).
2 Furthermore, the IJ reasonably relied on You’s demeanor
3 to find her not credible, noting that she was “hesitant,”
4 “unsure in terms of her responses,” and “repetitive in her
5 answers.” We afford particular deference to such
6 assessments of an applicant’s demeanor. See Majidi,
430
7 F.3d at 81 n.1.
8 Lastly, because the IJ did not find You’s testimony
9 credible, he properly noted the absence of documentary
10 evidence that may have corroborated her claim that she had
11 been forcibly sterilized. See Xiao Ji Chen v. U.S. Dep’t of
12 Justice,
471 F.3d 315, 341 (2d Cir. 2006). Although You
13 argues that the IJ erred in giving diminished weight to the
14 letters she submitted in support of her application, we
15 defer to the IJ’s evaluation of documentary evidence.
16
Id. at 342.
17 Accordingly, substantial evidence supports the agency’s
18 adverse credibility determination. See Zhou Yun Zhang,
386
19 F.3d at 74. Because the only evidence of a threat to You’s
20 life or freedom depended upon her credibility, the adverse
21 credibility determination in this case necessarily precludes
22 success on her claim for asylum, withholding of removal, and
5
1 CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
2 Cir. 2006).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot.
8
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
13
6
