Filed: Apr. 10, 2012
Latest Update: Feb. 22, 2020
Summary: 10-4830-ag Cui v. Holder BIA Nelson, IJ A098 604 532 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: 10-4830-ag Cui v. Holder BIA Nelson, IJ A098 604 532 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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10-4830-ag
Cui v. Holder
BIA
Nelson, IJ
A098 604 532
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 April, two thousand twelve.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 MING LAN CUI,
14 Petitioner,
15
16 v. 10-4830-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, NY.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Jennifer J. Keeney, Senior
27 Litigation Counsel; Cindy S.
28 Ferrier, Senior Litigation Counsel,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 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 Petitioner Ming Lan Cui, a native and citizen of the
6 People’s Republic of China, seeks review of a November 1,
7 2010, order of the BIA, affirming the August 18, 2009,
8 decision of Immigration Judge (“IJ”) Barbara A. Nelson,
9 which denied her application for asylum, withholding of
10 removal, and relief under the Convention Against Torture
11 (“CAT”). In re Ming Lan Cui, No. A098 604 532 (B.I.A. Nov.
12 1, 2010), aff’g No. A098 604 532 (Immig. Ct. N.Y. City Aug.
13 18, 2009). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.
18 2006). The applicable standards of review are well
19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
20 Holder,
562 F.3d 510, 513 (2d Cir. 2009). For applications,
21 such as this one, governed by the REAL ID Act of 2005, the
22 agency may, considering the totality of the circumstances,
23 base a credibility finding on an asylum applicant’s
2
1 demeanor, the plausibility of her account, and
2 inconsistencies in her statements, without regard to whether
3 they go “to the heart of the applicant’s claim.” 8 U.S.C.
4 § 1158(b)(1)(B)(iii); see also In re J-Y-C-, 24 I. & N. Dec.
5 260, 265 (BIA 2007). Analyzed under the REAL ID Act, the
6 agency’s adverse credibility determination is supported by
7 substantial evidence.
8 In finding Cui not credible, the agency reasonably
9 noted that her testimony and documentation were inconsistent
10 regarding conversations she allegedly had with her husband
11 concerning the Chinese government’s interest in her
12 political activities. See Xiu Xia Lin v. Mukasey, 534 F.3d
13 162, 167 (2d Cir. 2008) (per curiam). Although Cui argues
14 that the IJ erred in failing to consider her explanations
15 for the inconsistencies, the IJ summarized Cui’s
16 explanations for her inconsistent statements – that she
17 misspoke because she was nervous, and forgot to include
18 information – and was not required to accept these
19 explanations, as they would not necessarily be compelling to
20 a reasonable fact-finder. See Majidi v. Gonzales,
430 F.3d
21 77, 81 (2d Cir. 2005). Cui further argues that the agency
22 erred in relying on the inconsistencies in her testimony
3
1 because she was asked confusing questions that suggested
2 that the Chinese police had visited her rather than her
3 husband. Although Cui is correct that Government counsel’s
4 use of the word “you” at the end of her question – “[h]ow do
5 you know this if your husband only said that the police had
6 come to visit you?” – implied that the Chinese police had
7 visited Cui, it is clear from the context that the intended
8 meaning was that the police had visited Cui’s husband, and
9 there is no indication that the errant pronoun caused any
10 real confusion. Thus, the agency reasonably relied on the
11 inconsistencies in Cui’s testimony to find her not credible.
12 See Xiu Xia Lin, 534 F.3d at 167.
13 The IJ also relied in part on Cui’s demeanor to find
14 her not credible, noting that “[s]he had difficulty
15 answering questions” and “had to pause frequently for long
16 periods of time before answering questions” and that it
17 appeared “that she was making up her story as she went along
18 in terms of the information that her husband had and her
19 husband gave her.” Because the IJ was in the best position
20 to observe Cui’s manner while testifying, we accord her
21 demeanor finding particular deference. See Shu Wen Sun v.
22 BIA,
510 F.3d 377, 380-81 (2d Cir. 2007) (per curiam); Jin
4
1 Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.
2 2005). Moreover, because the IJ identified inconsistencies
3 in her testimony as another reason to doubt Cui’s
4 credibility, as discussed above, we may confidently rely on
5 the IJ’s demeanor finding. See Li Hua Lin v. U.S. Dep’t of
6 Justice,
453 F.3d 99, 109 (2d Cir. 2006).
7 Cui finally argues that even if her testimony was not
8 credible, she demonstrated a well-founded fear that the
9 Chinese government will become aware of her political
10 activities. As the Government notes, however, Cui failed to
11 exhaust this argument before the BIA. We therefore decline
12 to address it. See Lin Zhong v. U.S. Dep’t of Justice, 480
13 F.3d 104, 122 (2d Cir. 2007). Contrary to Cui’s suggestion,
14 this argument is not subsidiary to or an extension of the
15 arguments she raised on appeal before the BIA – that the IJ
16 failed to consider her explanations and that corroborative
17 evidence was not readily available. See Steevenez v.
18 Gonzales,
476 F.3d 114, 117-18 (2d Cir. 2007).
19 Thus, the agency did not err in denying Cui’s
20 applications for asylum and withholding of removal, as both
21 claims shared the same factual predicate. See Paul v.
22 Gonzales,
444 F.3d 148, 155-56 (2d Cir. 2006). Cui does not
23 challenge the denial of her application for CAT relief.
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, Cui’s pending
3 motion for a stay of removal in this petition is DISMISSED
4 as moot. Cui’s pending request for oral argument in this
5 petition is DENIED in accordance with Federal Rule of
6 Appellate Procedure 34(a)(2) and Second Circuit Local Rule
7 34.1(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
6
