Filed: Dec. 29, 2010
Latest Update: Feb. 21, 2020
Summary: 09-4924-ag Sun v. Holder BIA Gordon-Uruakpa, IJ A094 925 170 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 (WIT
Summary: 09-4924-ag Sun v. Holder BIA Gordon-Uruakpa, IJ A094 925 170 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..
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09-4924-ag
Sun v. Holder
BIA
Gordon-Uruakpa, IJ
A094 925 170
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 29 th day of December, two thousand ten.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 SHUTIAN SUN,
14 Petitioner,
15
16 v. 09-4924-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; John C. Cunningham, Senior
27 Litigation Counsel; Briena L.
28 Strippoli, Trial Attorney, Office of
29 Immigration Litigation, U.S.
30 Department of Justice, Washington
31 D.C.
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 Petitioner Shu Tian Sun, a native and citizen of the
6 People’s Republic of China, seeks review of the October 26,
7 2009, order of the BIA affirming the May 29, 2008, decision
8 of Immigration Judge (“IJ”) Vivienne Gordon-Uruakpa denying
9 his application for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Shutian Sun, No. A094 925 170 (B.I.A. Oct. 26, 2009), aff’g
12 No. A094 925 170 (Immig. Ct. N.Y. City May 29, 2008). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as supplemented by the BIA. See Yun-Zui Guan
17 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The
18 applicable standards of review are well-established. See 8
19 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey,
519 F.3d 90, 95
20 (2d Cir. 2008); Ramsameachire v. Ashcroft,
357 F.3d 169,
21 178-79 (2d Cir. 2004).
2
1 The agency’s adverse credibility determination is based
2 on substantial evidence given the omissions in Sun’s
3 statements during his Border Patrol and credible fear
4 interviews. See Ming Zhang v. Holder, 585 F.3d 715, 725 (2d
5 Cir. 2009);
Ramsameachire, 357 F.3d at 180-81. Contrary to
6 Sun’s contention on appeal, it was not unreasonable for the
7 IJ to rely on omissions in his Border Patrol and credible
8 fear interviews, as the record shows that those interviews
9 and the statements made therein are sufficiently reliable.
10 The answers given during both interviews were recorded in
11 typed documents, interviewers questioned Sun about his
12 claimed fear of persecution and any harm he had suffered in
13 China, and a Mandarin interpreter was provided. We have
14 held that reliance on interviews similar to Sun’s is
15 reasonable. See Ming
Zhang, 585 F.3d at 724-25;
16
Ramsameachire, 357 F.3d at 180-81.
17 Because the interviews were sufficiently reliable, the
18 agency did not err in relying on inconsistencies between
19 statements made during those interviews and Sun’s subsequent
20 asylum application and merits hearing testimony. As the IJ
21 pointed out, Sun claimed in his application and at his
22 hearing that he fled China on account of his involvement
3
1 with Falun Gong, but he did not mention any Falun Gong
2 involvement during his Border Patrol interview. Sun also
3 alleged in his application and hearing that he was arrested
4 and beaten for supporting Falun Gong, but he failed to
5 mention those facts during either of the initial interviews,
6 instead stating only that a friend of his was arrested and
7 beaten. See 8 U.S.C. § 1158(b)(1)(B)(iii) (listing “the
8 consistency between the applicant’s . . . written and oral
9 statements” as a factor in the IJ’s credibility finding);
10 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)
11 (same). Further, the agency’s decision not to give weight
12 to the two letters Sun submitted as corroborating evidence
13 was reasonable. As distinguished from the decision of
14 whether to consider evidence at all, the weight afforded to
15 the applicant’s evidence in immigration proceedings lies
16 largely within the discretion of the IJ. See Xiao Ji Chen
17 v. U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir. 2006).
18 To the extent Sun claims a well-founded fear of
19 persecution based on his stated practice of Falun Gong in
20 the United States, Sun did not sufficiently challenge the
21 agency’s denial of this claim in his brief to this court.
22 Sun only asserted that he practiced Falun Gong in the United
4
1 States, without raising any arguments against the agency’s
2 finding that he failed to present sufficient credible
3 evidence of such practice. See Yueqing Zhang v. Gonzales,
4 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005). Finally, we
5 lack jurisdiction to consider Sun’s CAT claim as he did not
6 raise it before the BIA. See Karaj v. Gonzales,
462 F.3d
7 113, 119 (2d Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
5
