Filed: May 29, 2012
Latest Update: Mar. 26, 2017
Summary: 11-2761-ag Yang v. Holder BIA Schoppert, IJ A089 250 764 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 TH
Summary: 11-2761-ag Yang v. Holder BIA Schoppert, IJ A089 250 764 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..
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11-2761-ag
Yang v. Holder
BIA
Schoppert, IJ
A089 250 764
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 New
4 York, on the 29th day of May, two thousand twelve.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 REENA RAGGI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _________________________________________
12
13 ZHONGDIAN YANG,
14 Petitioner,
15
16 v. 11-2761-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Michael A.O. Brown, Law Offices of
24 Michael Brown, P.C., New York, N.Y.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney General;
27 Anthony C. Payne, Senior Litigation
28 Counsel; Colette J. Winston, Attorney;
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 is
4 DENIED.
5 Petitioner Zhongdian Yang, a native and citizen of the
6 People’s Republic of China, seeks review of a June 30, 2011
7 decision of the BIA affirming the January 10, 2011 decision of
8 an Immigration Judge (“IJ”) denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Zhongdian Yang, No.
11 A089 250 764 (B.I.A. June 30, 2011), aff’g No. A089 250 764
12 (Immig. Ct. N.Y. City Jan. 10, 2011). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 of the case.
15 We have considered both the BIA’s opinion and the IJ’s
16 decision. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
17 Cir. 2005). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia
19 Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
20 Substantial evidence supports the agency’s determination
21 that Yang did not testify credibly regarding his claim that he
22 had been persecuted in China on the basis of his resistance to
2
1 China’s coercive family planning policies. The agency
2 reasonably relied on inconsistencies in the record. See
3 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
4 64, 166-67. As the IJ reasonably found, Yang’s testimony that
5 he was beaten by family planning officials was inconsistent
6 with his wife’s letter stating that the officials had
7 “scolded” him. Yang argues that his wife’s use of the word
8 “scolded” can be interpreted to be consistent with his
9 testimony because “scolded” can encompass a physical beating.
10 This “ex post justification,” however, is not a sufficient
11 basis to overturn the agency’s adverse credibility
12 determination, as it does not compel the conclusion that a
13 reasonable fact-finder would credit Yang’s testimony. See Wu
14 Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003) (observing
15 that a petitioner must offer more than a “plausible
16 alternative theory” to warrant reversal) (internal quotation
17 marks omitted); Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d
18 Cir. 2005).
19 The agency also reasonably relied on Yang’s inconsistent
20 statements regarding whether he fled from the family planning
21 officials after they beat him or whether they simply left.
22 Yang argues that his testimony that his family helped him
3
1 resist and escape the officials was consistent with his
2 testimony that the officials beat him. This argument,
3 however, fails to account for the fact that Yang also
4 testified that they simply left after beating him and warning
5 him to comply with family planning policies.
6 Finally, Yang argues that, because the inconsistencies do
7 not go to the heart of his claim for relief, they do not
8 support the adverse credibility determination. We disagree
9 for two reasons. First, Yang’s claim is based on his
10 purported resistance to the coercive family planning policies,
11 and the inconsistencies identified by the agency involve the
12 central facts comprising that resistance. Second, Yang’s
13 application is governed by the REAL ID Act, and the agency
14 properly based its adverse credibility determination on
15 inconsistencies in Yang’s statement and testimony, without
16 regard to whether those inconsistencies went “to the heart of
17 [Yang’s] claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
18 534 F.3d at 163-64. The inconsistencies identified by the
19 agency provided substantial evidence in support of the
20 agency’s adverse credibility determination. See 8 U.S.C. §
21 1158(b)(1)(B)(iii). Accordingly, the agency did not err in
22 denying Yang’s claims for asylum, withholding of removal, and
4
1 CAT relief insofar as those claims were based on his
2 resistance to China’s coercive family planning policies. See
3 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is VACATED,
7 and petitioner’s pending motion for a stay of removal in this
8 petition is DISMISSED as moot.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
5
