Filed: Oct. 28, 2013
Latest Update: Mar. 28, 2017
Summary: 12-3280 Qian v. Holder BIA Weisel, IJ A087 785 254 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
Summary: 12-3280 Qian v. Holder BIA Weisel, IJ A087 785 254 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 NOTAT..
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12-3280
Qian v. Holder
BIA
Weisel, IJ
A087 785 254
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 October, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 JUN QIAN,
14 Petitioner,
15
16 v. 12-3280
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Guang Jun Gao, Law Offices of Guang
24 Jun Gao, LLP, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; William C.
28 Peachey, Assistant Director; Puneet
29 Cheema, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Petitioner Jun Qian, a native and citizen of China,
6 seeks review of a July 23, 2012 decision of the BIA
7 affirming a May 4, 2011 decision of the Immigration Judge
8 (“IJ”), denying Qian’s application for asylum, withholding
9 of removal and relief under the Convention Against Torture
10 (“CAT”). In re Jun Qian, No. A087 785 254 (B.I.A. July 23,
11 2012), aff’g No. A087 785 254 (Immig. Ct. N.Y. City May 4,
12 2011). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we review the
15 decisions of both the IJ and the BIA. See Guan v. Gonzales,
16 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards
17 of review are well-established. See 8 U.S.C.
18 § 1252(b)(4)(B); Weng v. Holder,
562 F.3d 510, 513 (2d Cir.
19 2009).
20 For applications like this one, governed by the REAL ID
21 Act of 2005, the agency may, considering the totality of the
22 circumstances, base a credibility finding on an asylum
23 applicant’s demeanor, the plausibility of his account, and
2
1 inconsistencies in his statements, without regard to whether
2 they go “to the heart of the applicant's claim.” 8 U.S.C.
3 § 1158(b)(1)(B)(iii); Matter of J–Y–C–, 24 I. & N. Dec. 260,
4 265 (B.I.A. 2007). Analyzed under these standards, the
5 agency’s adverse credibility determination is supported by
6 substantial evidence.
7 In finding Qian not credible, the IJ reasonably relied
8 on inconsistencies between his testimony, asylum
9 application, and documentary evidence as to when he had
10 surgery and when he was released from the hospital.
11 Contrary to Qian’s contention, the IJ did consider his
12 explanation that he was mistaken about the relevant dates
13 because he was nervous. However, given the glaring
14 inconsistencies, both within Qian’s testimony, and between
15 his testimony, his asylum application, and his documentary
16 evidence, which he was never able to reconcile, the agency
17 was not required to accept this explanation. See Majidi v.
18 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that
19 the agency need not credit an applicant’s explanations for
20 inconsistent testimony unless those explanations would
21 compel a reasonable fact-finder to do so). This is all the
22 more true where, as here, Qian also attempted to explain the
3
1 inconsistencies by testifying that his asylum application
2 contained the wrong date because his father (who remains in
3 China) had made a mistake.
4 There is no merit to Qian’s argument that the IJ erred
5 by relying on minor inconsistencies. Under the REAL ID Act,
6 “an IJ may rely on any inconsistency or omission in making
7 an adverse credibility determination as long as the
8 ‘totality of the circumstances’ establishes that an asylum
9 applicant is not credible.” Xiu Xia Lin v. Mukasey, 534
10 F.3d 162, 167 (2d Cir. 2008) (emphasis in original).
11 Moreover, Qian’s inconsistencies cannot be considered minor.
12 Based on the different dates he provided for his release
13 from the hospital, he variously asserted that he had been
14 hospitalized for two days, two weeks, and one month
15 following surgery.
16 Finally, Qian contends that the agency’s decision is
17 inconsistent with the United Nations High Commissioner for
18 Refugees Handbook on Procedures and Criteria for Determining
19 Refugee Status (the “U.N. Handbook”), which provides that
20 untrue statements, alone, are not a sufficient basis for
21 denying refugee status. However, the U.N. Handbook is not
22 binding on either the agency or this Court. See INS v.
23 Aguirre-Aguirre,
526 U.S. 415, 427 (1999).
4
1 Accordingly, substantial evidence supports the agency’s
2 adverse credibility determination. See 8 U.S.C.
3 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Having
4 reasonably found that Qian failed to establish eligibility
5 for asylum on credibility grounds, the agency did not err in
6 denying withholding of removal and relief under the CAT, as
7 these claims shared the same factual predicate. See Paul v.
8 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Yang v. U.S.
9 Dep’t of Justice,
426 F.3d 520, 523 (2d Cir. 2005). For
10 the foregoing reasons, the petition for review is DENIED.
11 As we have completed our review, any stay of removal that
12 the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this
14 petition is DISMISSED as moot. Any pending request for oral
15 argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
5
