Filed: Sep. 27, 2012
Latest Update: Mar. 26, 2017
Summary: 11-223 BIA Han v. Holder Burr, IJ A088 551 562 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: 11-223 BIA Han v. Holder Burr, IJ A088 551 562 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 ..
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11-223 BIA
Han v. Holder Burr, IJ
A088 551 562
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 27th day of September, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 SUSAN L. CARNEY,
10 CHRISTOPHER F. DRONEY,
11 Circuit Judges.
12 _____________________________________
13
14 LI MIN HAN,
15 Petitioner,
16
17 v. 11-223
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Matthew J. Harris, Law Offices of
25 Theodore M. Davis, Long Island City,
26 New York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Shelley R. Goad, Assistant
30 Director, Jennifer P. Levings;
1 Senior Litigation Counsel, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Li Min Han, a native and citizen of the People’s
11 Republic of China, seeks review of a December 14, 2010,
12 decision of the BIA affirming the December 15, 2008,
13 decision of Immigration Judge (“IJ”) Sarah Burr, which
14 denied his application for asylum, withholding of removal,
15 and relief under the Convention Against Torture (“CAT”). In
16 re Li Min Han, No. A088 551 562 (B.I.A. Dec. 14, 2010),
17 aff’g No. A088 551 562 (Immig. Ct. N.Y. City, Dec. 15,
18 2008). We assume the parties’ familiarity with the
19 underlying facts and procedural history in this case.
20 Under the circumstances of this case we have reviewed
21 both the IJ’s and the BIA’s opinions “for the sake of
22 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
23 2008). The applicable standards of review are well-
24 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia
25 Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008). For
2
1 asylum applications, such as Han’s, governed by the REAL ID
2 Act, the agency may, “[c]onsidering the totality of the
3 circumstances, . . . base a credibility finding on the
4 demeanor, candor or responsiveness of the applicant, . . .
5 [and] the consistency between the applicant’s or witness’s
6 written or oral statement, . . . without regard to whether
7 an inconsistency . . . goes to the heart of the applicant’s
8 claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
9 F.3d at 167. We “defer to an IJ’s credibility determination
10 unless, from the totality of the circumstances, it is plain
11 that no reasonable fact-finder could make such an adverse
12 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
13 The agency’s adverse credibility determination was
14 based on Han’s demeanor, inconsistent statements, and a
15 false address Han provided to the IJ.
16 In finding that Han’s demeanor was hesitant and non-
17 responsive, the IJ observed that Han‘s testimony, which had
18 been “fluid,” became “evasive and hesitant” once it became
19 clear that his business license contradicted his testimony
20 as to when his business was closed. Accordingly, this
21 finding is supported by the record and is entitled to
22 particular deference. See Majidi v. Gonzales, 430 F.3d 77,
3
1 81 n.1 (2d Cir. 2005); Li Hua Lin v. U.S. Dep’t of Justice,
2 453 F.3d 99, 109 (2d Cir. 2006) (a reviewing court “can be .
3 . . more confident in [its] review of observations about an
4 applicant’s demeanor where . . . they are supported by
5 specific examples of inconsistent testimony.”).
6 As the agency found, Han’s testimony was internally
7 inconsistent. Han stated that he renewed his business
8 license in 2000, that it was valid until 2006, and that he
9 renewed it again in 2006 for a second four-year validity
10 period. However, the license he submitted as evidence was
11 issued in April 2007, and valid from May 2004 to March 2009.
12 See Xiu Xia Lin, 534 F.3d at 167 (holding that “an IJ may
13 rely on any inconsistency or omission in making an adverse
14 credibility determination”) (emphasis in original). Since
15 Han testified at one point that he obtained the license, the
16 agency was not required to credit Han’s explanation that his
17 wife obtained it. See Majidi, 430 F.3d at 80-81 (the agency
18 need not credit applicant’s explanations for inconsistent
19 testimony unless explanations would compel a reasonable
20 fact-finder to do so).
21 The IJ also cited Han’s omission of his wife’s arrest
22 from his testimony. Han testified that he was unaware of
4
1 the arrest, but he submitted a letter from his mother
2 informing him of it. (For purposes of analyzing a
3 credibility determination, “[a]n inconsistency and an
4 omission are . . . functionally equivalent.”) Xiu Xia Lin,
5 534 F.3d at 166 n.3.
6 The IJ found that Han provided a false address for the
7 purpose of evading U.S. immigration authorities. Han
8 admitted to purposefully providing the wrong address “just
9 in case this thing did not go through.” The IJ was not
10 required to credit Han’s testimony that he gave a false
11 address in New York to evade the Chinese authorities. See
12 Wensheng Yan v. Mukasey, 509 F.3d 63, 66-67 (2d Cir. 2007)
13 (holding that a finding is not “impermissibly speculative”
14 if it is “tethered to record evidence, and there is nothing
15 else in the record from which a firm conviction of error
16 could properly be derived.”)
17 Given these findings, the agency’s adverse credibility
18 determination is supported by substantial evidence and is a
19 dispositive basis for the agency’s denial of asylum,
20 withholding of removal, and CAT relief as the claims all
21 were based on the same factual predicate. See Paul v.
22 Gonzales,
444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
23 U.S. Dep’t of Justice,
426 F.3d 520, 523 (2d Cir. 2005).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
6
