Filed: Mar. 28, 2013
Latest Update: Mar. 28, 2017
Summary: 12-480 Di v. Holder BIA Nelson, IJ A089 906 269 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: 12-480 Di v. Holder BIA Nelson, IJ A089 906 269 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
12-480
Di v. Holder
BIA
Nelson, IJ
A089 906 269
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 28th day of March, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 XIAN HUI DI,
14 Petitioner,
15
16 v. 12-480
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lee Ratner, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Richard M. Evans,
27 Assistant Director; Jeffrey J.
28 Bernstein, Trial Attorney, Office of
1 Immigration Litigation, Civil
2 Division, United States Department
3 of Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Xian Hui Di, a native and citizen of the People’s
10 Republic of China, seeks review of a January 18, 2012, order
11 of the BIA, affirming the March 17, 2010, decision of
12 Immigration Judge (“IJ”) Barbara A. Nelson, which denied her
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re Xian
15 Hui Di, No. A089 906 269 (B.I.A. Jan. 18, 2012), aff’g No.
16 A089 906 269 (Immig. Ct. N.Y. City Mar. 17, 2010). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, the Court should
20 consider both the IJ’s and the BIA’s opinions “for the sake
21 of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d
22 Cir. 2008). The applicable standards of review are well-
23 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
24 Holder,
562 F.3d 510, 513 (2d Cir. 2009).
2
1 For asylum applications such as Di’s, governed by the
2 REAL ID Act, the agency may, considering the totality of the
3 circumstances, base a credibility finding on an asylum
4 applicant’s demeanor, the plausibility of his account, and
5 inconsistencies in his statements, without regard to whether
6 they go “to the heart of the applicant’s claim.” 8 U.S.C.
7 § 1158(b)(1)(B)(iii).
8 In finding Di not credible, the agency reasonably
9 relied in part on her demeanor, finding that Di’s testimony
10 was often evasive, hesitant, and non-responsive. See Majidi
11 v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005). The IJ’s
12 demeanor findings were further supported by specific
13 examples of Di’s inconsistent testimony. See Li Hua Lin v.
14 U.S. Dep’t of Justice,
453 F.3d 99, 109 (2d Cir. 2006). In
15 this regard, the agency reasonably found that Di failed to
16 provide a consistent account of her employment history in
17 China or to testify consistently regarding the year in which
18 she was unable to work because she was taking care of her
19 sick father. See Xiu Xia Lin v. Mukasey,
534 F.3d 162, 167
20 (2d Cir. 2008) (per curiam). Furthermore, the agency
21 reasonably relied on a discrepancy between Di’s asylum
22 application and testimony with regard to whether Di had been
3
1 in hiding continuously from the time that she discovered she
2 was pregnant with her second child until that pregnancy
3 allegedly was terminated, see Iouri v. Ashcroft, 487 F.3d
4 76, 81-82 (2d Cir. 2007), as well as on an inconsistency
5 between Di’s testimony and that of her witness, Pastor Xao
6 Deng Pang, regarding the extent of their communications
7 prior to her merits hearing, see Xiu Xia Lin, 534 F.3d at
8 167. A reasonable fact finder would not be compelled to
9 credit Di’s explanations for these inconsistencies. Majidi,
10 430 F.3d at 80-81.
11 The adverse credibility determination is further
12 supported by Di’s failure to present adequate corroboration
13 of her claims of a forced abortion; an arrest, detention,
14 and beating in 2007 for participating in underground church
15 activities; and joining the Faith Bible Church after her
16 arrival in the United States. See Biao Yang v. Gonzales,
17
496 F.3d 268, 273 (2d Cir. 2007).
18 Ultimately, because a reasonable fact-finder would not
19 be compelled to conclude to the contrary regarding the
20 agency’s demeanor, inconsistency, and lack of corroboration
21 findings, the agency’s adverse credibility determination is
22 supported by substantial evidence. See Xiu Xia Lin, 534
4
1 F.3d at 165-66. The agency’s denial of Di’s application for
2 asylum, withholding of removal, and CAT relief was not in
3 error as all three claims shared the same factual predicate.
4 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006)
5 (withholding of removal); Xue Hong Yang v. U.S. Dep’t of
6 Justice,
426 F.3d 520, 523 (2d Cir. 2006) (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
5
