Filed: May 07, 2014
Latest Update: Mar. 02, 2020
Summary: 12-4220 Wu v. Holder BIA Wright, IJ A087 638 548 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 NOTATI
Summary: 12-4220 Wu v. Holder BIA Wright, IJ A087 638 548 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..
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12-4220
Wu v. Holder
BIA
Wright, IJ
A087 638 548
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 7th day of May, two thousand fourteen.
PRESENT:
JOSÉ A. CABRANES,
SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
GUIYOU WU,
Petitioner,
v. 12-4220
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Thomas V. Massucci, New York, New
York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; William C.
Peachey, Assistant Director; Lindsay
Corliss, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Guiyou Wu, a native and citizen of the People’s
Republic of China, seeks review of an October 9, 2012
decision of the BIA affirming the April 7, 2011 decision of
Immigration Judge (“IJ”) Virna A. Wright, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Guiyou
Wu, No. A087 638 548 (B.I.A. Oct. 9, 2012), aff’g No. A087
638 548 (Immig. Ct. N.Y. City April 7, 2011). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
the decision of the IJ as supplemented and modified by the
BIA, including the portions not explicitly discussed by the
BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
Cir. 2005); Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d
520, 522 (2d Cir. 2005). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); see
also Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir.
2009). For applications such as Wu’s, governed by the
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amendments made to the Immigration and Nationality Act by
the REAL ID Act of 2005, the agency may, “[c]onsidering the
totality of the circumstances,” base a credibility finding
on the applicant’s “demeanor, candor, or responsiveness,”
the plausibility of his account, and inconsistencies in his
statements, without regard to whether they go “to the heart
of the applicant’s claim.” See 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam). We
will “defer to an IJ’s credibility determination unless,
from the totality of the circumstances, it is plain that no
reasonable fact-finder could make” such a ruling. Xiu Xia
Lin, 534 F.3d at 167.
Here, while the IJ’s decision is flawed in some
respects, the adverse credibility determination is
nevertheless supported by substantial evidence. The IJ
rested her negative credibility finding on the following
inconsistencies and omissions: (1) Wu’s testimony that a
staff meeting during which he delivered a speech against his
corrupt employers was organized by his work unit’s
leadership and the city, although in his application he did
not mention the city’s involvement; (2) Wu’s failure to
3
testify during direct examination that (a) in addition to
slapping his face, his interrogators kicked him, and that
(b) the police required him to report periodically after his
release from detention; and (3) Wu’s omission from his
asylum application of any mention of the sign posted by his
employers giving notice that he had been fired, or of the
attacks he suffered at the hands of fellow detainees.
Regarding the staff meeting, Wu consistently identified
his employer as state-owned and asserted that his anti-
corruption speech attacked both his leaders and, more
broadly, the corruption in China’s Communist Party.
Therefore, his testimony that the meeting was called by his
work unit and the unit’s related governmental bureau is
consistent with his application’s statement that the factory
leaders called the meeting. Moreover, given Wu’s repeated
testimony that he was fired by his employer in retaliation
for his speech and that his employer always posted a notice
of termination, the IJ may have unreasonably rejected Wu’s
explanation for omitting mention of that notice—that it was
a redundant detail. See Majidi v. Gonzales, 430 F.3d 77,
80-81 (2d Cir. 2005).
4
Nevertheless, the IJ’s adverse credibility
determination is sufficiently supported by the remaining
omissions. Despite Wu’s arguments that the IJ should not
have relied on those omissions because (according to Wu)
they were minor and immaterial to his claim for relief, the
IJ may consider any omissions, material or not, see Xiu Xia
Lin, 534 F.3d at 167, and is not required to accept
explanations for those omissions unless a reasonable fact
finder would be compelled to do so, see
Majidi, 430 F.3d at
80-81. Moreover, the IJ was entitled to rely on the
cumulative effect of the omissions. See Tu Lin v. Gonzales,
446 F.3d 395, 402 (2d Cir. 2006).
Ultimately, the totality of the circumstances supports
the IJ’s adverse credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because
the strength of the only evidence of a threat to Wu’s life
or freedom depended upon his credibility, the adverse
credibility determination in this case necessarily precludes
Wu’s success on his claims for withholding of removal and
CAT relief. See Paul v. Gonzales,
444 F.3d 148, 156 (2d
Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, Petitioner’s
5
motion for a stay of removal in this petition is DISMISSED
as moot and his pending request for oral argument is DENIED
in accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6
