Filed: Apr. 06, 2012
Latest Update: Feb. 22, 2020
Summary: 11-2923-ag Li v. Holder BIA Nelson, IJ A089 253 378 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: 11-2923-ag Li v. Holder BIA Nelson, IJ A089 253 378 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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11-2923-ag
Li v. Holder
BIA
Nelson, IJ
A089 253 378
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 6 th day of April, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSEPH M. McLAUGHLIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 ZONGYOU LI,
14 Petitioner,
15
16 v. 11-2923-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23
24 FOR PETITIONER: Charles Christophe, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Linda S. Wernery, Assistant
29 Director; Theodore C. Hirt,
30 Attorney, Office of Immigration
31 Litigation, United States Department
32 of Justice, Washington D.C.
33
34
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 Zongyou Li, 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 July 16, 2009, decision of
8 Immigration Judge (“IJ”) Barbara A. Nelson, denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Zongyou
11 Li, No. A089 253 378 (B.I.A. June 30, 2011), aff’g No. A089
12 253 378 (Immig. Ct. N.Y. City July 16, 2009). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 We have reviewed both the IJ’s and BIA’s decisions “for
16 the sake of completeness.” See Zaman v. Mukasey, 514 F.3d
17 233, 237 (2d Cir. 2008). The applicable standards of review
18 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see
19 also Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir.
20 2008).
21 I. Adverse Credibility
22 For asylum applications, such as Li’s, governed by the
2
1 REAL ID Act, the agency may, “[c]onsidering the totality of
2 the circumstances, . . . base a credibility determination on
3 . . . the inherent plausibility of the applicant’s or
4 witness’s account . . . [and] the internal consistency of
5 each such statement . . . without regard to whether an
6 inconsistency . . . goes to the heart of the applicant’s
7 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534
8 F.3d at 165-66. We “defer therefore to an IJ’s credibility
9 determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make such an adverse credibility ruling.” Xiu Xia
12
Lin, 534 F.3d at 167. In making a finding that an
13 applicant’s claim is inherently implausible, the agency is
14 not required to “explain in precise detail what made each
15 identified act implausible.” See Wensheng Yan v. Mukasey,
16
509 F.3d 63, 67 (2d Cir. 2007). Rather, if “the reasons for
17 [the IJ’s] incredulity are evident,” the implausibility
18 finding is supported by substantial evidence. See
id.
19 The agency’s adverse credibility determination was
20 reasonably based on the implausibility of Li’s testimony
21 that he could not support his family because he lost his job
22 and his wife was demoted, while he was able to pay for
3
1 travel to the United States on two occasions, as well as his
2 testimony that he returned to China following his first trip
3 to the United States, despite that he allegedly feared
4 persecution based on his violation of the family planning
5 policy. See Kone v. Holder, 596 F.3d 141, 150-51 (2d Cir.
6 2010); Wensheng
Yan, 509 F.3d at 67. These findings provide
7 support for the agency’s credibility determination, and the
8 agency was not required to credit Li’s explanations for the
9 inconsistencies. See Majidi v. Gonzales,
430 F.3d 77, 81
10 (2d Cir. 2005).
11 II. Burden Finding
12 Even assuming Li’s credibility and that Li engaged in
13 “other resistance” to Chinese family planning policy, the
14 agency reasonably found that Li failed to establish past
15 persecution or a well-founded fear of future harm. We have
16 held that “minor bruising from an altercation with family
17 planning officials, which required no formal medical
18 attention and had no lasting physical effect” did not amount
19 to persecution. See Jian Qiu Liu v. Holder,
632 F.3d 820,
20 822 (2d Cir. 2011). Although a minor injury may rise to the
21 level of persecution when inflicted in the context of
22 detention, see Beskovic v. Gonzales,
467 F.3d 223, 226 (2d
23 Cir. 2006), the BIA’s conclusion that Li’s mistreatment did
4
1 not rise to the level of persecution is reasonable as the
2 lightbulb burns he suffered required no formal medical
3 attention, and occurred during a brief period of detention
4 at his place of employment. Moreover, because Li did not
5 produce any evidence that his wife underwent an abortion
6 procedure, and, significantly, neither his wife’s, mother’s,
7 nor colleague’s affidavits state that she underwent an
8 abortion, and because the agency reasonably rejected Li’s
9 argument that his affidavits can be read in the context of
10 his overall testimony to refer to his wife’s abortion, see
11 Majidi, 430 F.3d at 81, the agency did not err in concluding
12 that Li had failed to carry his burden of demonstrating past
13 persecution, see Diallo v. INS,
232 F.3d 279, 285 (2d Cir.
14 2000).
15 As the agency’s finding that Li did not establish past
16 persecution obviates any presumption of a well-founded fear
17 of persecution, see 8 C.F.R. § 1208.13(b)(1), and as Li has
18 failed to allege any additional basis for his fear of future
19 persecution, the agency did not err in denying his asylum
20 claim, see Jian Xing Huang v. INS,
421 F.3d 125, 129 (2d
21 Cir. 2005). Because the agency did not err in concluding
22 that Li failed to establish past persecution or a well-
23 founded fear of persecution if returned to China, it did not
5
1 err in similarly denying his application for withholding of
2 removal and CAT relief insofar as these claims shared the
3 same factual predicate. See Paul v. Gonzales, 444 F.3d 148,
4 156 (2d Cir. 2006) (withholding of removal); Xue Hong Yang
5 v. U.S. Dep’t of Justice,
426 F.3d 520, 523 (2d Cir. 2005)
6 (CAT).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of
9 removal that the Court previously granted in this petition
10 is VACATED, and any pending motion for a stay of removal in
11 this petition is DISMISSED as moot. Any pending request for
12 oral argument in this petition is DENIED in accordance with
13 Federal Rule of Appellate Procedure 34(a)(2), and Second
14 Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
6
