Filed: May 10, 2012
Latest Update: Feb. 12, 2020
Summary: 10-4763-ag Yu v. Holder BIA Nelson, IJ A099 661 325 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: 10-4763-ag Yu v. Holder BIA Nelson, IJ A099 661 325 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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10-4763-ag
Yu v. Holder
BIA
Nelson, IJ
A099 661 325
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 10th day of May, two thousand twelve.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT D. SACK,
9 REENA RAGGI,
10 Circuit Judges.
11 _______________________________________
12
13 LAN YU,
14 Petitioner,
15
16 v. 10-4763-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: John Z. Zhang, Esq., New York, New
24 York
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Lyle D. Jentzer, Senior
28 Litigation Counsel; John M. McAdams,
29 Jr., Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, 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 Lan Yu, a native and citizen of China, seeks review of
6 a November 8, 2010, decision of the BIA affirming the April
7 30, 2008, decision of Immigration Judge (“IJ”) Barbara A.
8 Nelson, which denied her application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Lan Yu, No. A099 661 325 (B.I.A. Nov. 8,
11 2010), aff’g No. A099 661 325 (Immig. Ct. N.Y. City Apr. 30,
12 2008). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the decision of the IJ as supplemented by the BIA. See Yan
16 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
17 applicable standards of review are well-established. See
18 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
19
562 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 to an IJ’s credibility
7 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 agency reasonably based its adverse
11 credibility determination on the inconsistencies between
12 Yu’s asylum application and her testimony regarding claimed
13 past persecution, and the insufficient corroboration of her
14 claim that she is a practicing Christian.
15 As the agency noted, there were discrepancies between
16 Yu’s asylum application and her testimony as to how she was
17 treated in detention, how many times she was forced to stand
18 outside in the cold, and the injuries she sustained from
19 being outside in the cold. Yu also testified inconsistently
20 regarding the issuance of the household registration
21 document she presented as evidence. The agency properly
22 relied on the cumulative effect of these inconsistencies to
3
1 support the adverse credibility finding. See 8 U.S.C.
2 § 1158(b)(1)(B)(iii) (providing that an IJ may base a
3 credibility determination on “the totality of the
4 circumstances, and all relevant factors”). Moreover, the IJ
5 provided Yu with multiple opportunities to reconcile her
6 testimony and she failed to present reasonable explanations
7 for the discrepancies. See Majidi v. Gonzales, 430 F.3d 77,
8 80-81 (2d Cir. 2005) (holding that agency need not credit an
9 asylum applicant’s explanations for inconsistent testimony
10 unless those explanations would compel a reasonable fact
11 finder to do so).
12 Finally, Yu failed to provide evidence sufficient to
13 corroborate her claim that she is a practicing Christian,
14 either in China or in the United States, and thus reasonably
15 fears religious persecution in China. When asked why Yu had
16 not provided any evidence to corroborate her claim that she
17 was a practicing Christian in China, such as a letter from
18 her husband, her parents, or any of the other members of her
19 house church who were present when she claims she was
20 arrested, she responded that such letters could not be
21 mailed from China because Chinese officials read all
22 international mail. This explanation did not, however,
4
1 explain why the only evidence supporting her claim that she
2 is a practicing Christian was a letter from a pastor at her
3 American church indicating that she had joined the church
4 only a month before. The IJ noted that Yu had not asked her
5 pastor to testify and failed to offer a persuasive
6 explanation why. Under these circumstances the agency
7 reasonably relied on Yu’s failure to corroborate her claim
8 that she is a practicing Christian to support its adverse
9 credibility determination. See Biao Yang v. Gonzales, 496
10 F.3d 268, 273 (2d Cir. 2007) (“[T]he absence of
11 corroboration in general makes an applicant unable to
12 rehabilitate testimony that has already been called into
13 question.”).
14 Therefore, in this case, the totality of the
15 circumstances support the agency’s adverse credibility
16 determination, and we will defer to that finding. See
17 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 167.
18 Furthermore, because the only evidence of a threat to Yu’s
19 life or freedom depended upon the credibility of her claims
20 of past persecution and fear of future persecution, the
21 adverse credibility determination in this case is
22 dispositive of her claims for asylum, withholding of
23 removal, and CAT relief. See Paul v. Gonzales,
444 F.3d
5
1 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
2 Justice,
426 F.3d 520, 523 (2d Cir. 2005).
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 DENIED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
6
