Filed: Aug. 27, 2012
Latest Update: Feb. 12, 2020
Summary: 11-4364 BIA Wang v. Holder Hom, IJ A087 481 167 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 NOTATIO
Summary: 11-4364 BIA Wang v. Holder Hom, IJ A087 481 167 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..
More
11-4364 BIA
Wang v. Holder Hom, IJ
A087 481 167
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 August, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _____________________________________
12
13 LI PING WANG,
14 Petitioner,
15
16 v. 11-4364
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jie Han, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Ernesto H. Molina,
27 Jr., Assistant Director, Tracey N.
28 McDonald; Trial Attorney, Office of
29 Immigration Litigation, United
30 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 Li Ping Wang, a native and citizen of the People’s
6 Republic of China, seeks review of a September 23, 2011,
7 decision of the BIA affirming the April 13, 2010, decision
8 of Immigration Judge (“IJ”) Sandy K. Hom, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Li Ping
11 Wang, No. A087 481 167 (B.I.A. Sept. 23, 2011), aff’g No.
12 A087 481 167 (Immig. Ct. N.Y. City, Apr. 13, 2010). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 We have reviewed the IJ’s decision as supplemented and
16 modified by the BIA. See Yan Chen v. Gonzales, 417 F.3d
17 268, 271 (2d Cir. 2005). 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). For asylum applications, like Wang’s, governed by
21 the REAL ID Act, the agency may, “[c]onsidering the totality
22 of the circumstances, . . . base a credibility finding on
23 the demeanor, candor or responsiveness of the applicant, . .
2
1 . [and] the consistency between the applicant’s or witness’s
2 written or oral statements, . . . without regard to whether
3 an inconsistency . . . goes to the heart of the applicant’s
4 claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
5 F.3d at 167. We “defer to an IJ’s credibility determination
6 unless, from the totality of the circumstances, it is plain
7 that no reasonable fact-finder could make such an adverse
8 credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
9 Wang testified that family planning officials beat him
10 with their fists, kicked him, and used batons to strike him
11 in the head and that as a result he suffered head injuries
12 and bruising on his body, chest, and stomach. Wang further
13 stated that he was treated for these injuries and submitted
14 a medical report to corroborate this claim. In finding Wang
15 not credible, the agency found that his testimony concerning
16 the injuries he received was inconsistent with the medical
17 report he submitted, which listed his injuries as “[h]ead
18 injury, skull skin torn, skull skin swollen” but did not
19 mention any bruising and that the same report listed the
20 manner in which he received the injuries as an “accidental
21 collision.” The agency reasonably concluded that these
22 inconsistencies were sufficient to find Wang not credible.
23 See U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at
3
1 167 (“[A]n IJ may rely on any inconsistency . . . in making
2 an adverse credibility determination as long as the
3 ‘totality of the circumstances’ establishes that an asylum
4 applicant is not credible” (emphasis in original)).
5 Furthermore, the agency was not required to credit Wang’s
6 explanation, that the medical report did not reflect what
7 really happened because the police and treating hospital
8 were in collusion, particularly since Wang failed to
9 corroborate any bruising consistent with being punched and
10 kicked with affidavits from his sister, who Wang testified
11 was a nurse who also treated his injuries. See Majidi v.
12 Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005) (The agency need
13 not credit an applicant’s explanations for inconsistent
14 testimony unless those explanations would compel a
15 reasonable fact-finder to do so). Moreover, having
16 questioned his credibility, the agency reasonably determined
17 that Wang was unable to rehabilitate his testimony as he
18 failed to present a statement from his sister corroborating
19 his injuries. See Biao Yang v. Gonzales,
496 F.3d 268, 273
20 (2d Cir. 2007) (“the absence of corroboration in general
21 makes an applicant unable to rehabilitate testimony that has
22 already been called into question.”).
4
1 Ultimately, because the inconsistency and lack of
2 corroboration relate to the single incident of persecution,
3 the adverse credibility determination is supported by
4 substantial evidence and the agency did not err in denying
5 asylum, withholding of removal, and CAT relief, as all three
6 claims were based on the same factual predicate. See 8
7 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 165-
8 66; see Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir. 2006)
9 (Withholding); Xue Hong Yang v. U.S. Dep’t of Justice, 426
10 F.3d 520, 523 (2d Cir. 2005) (CAT).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
5
