Xiangqing Ye v. Lynch , 614 F. App'x 534 ( 2015 )

13-3252
Ye v. Lynch
BIA
Poczter, IJ
A200 944 855
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 22nd day of June, two thousand fifteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DENNY CHIN,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 XIANGQING YE,
15 Petitioner,
16
17 v. 13-3252
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.*
22 _____________________________________
23
24
25 FOR PETITIONER: Jan Potemkin, New York, New York.
26
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Kiley Kane, Senior
3 Litigation Counsel; James A. Hurley,
4 Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Xiangqing Ye, a native and citizen of China,
14 seeks review of a July 26, 2013 order of the BIA, affirming
15 the December 12, 2011 decision of an Immigration Judge
16 (“IJ”), which denied asylum, withholding of removal, and
17 relief under the Convention Against Torture (“CAT”). In re
18 Xiangqing Ye, No. A200 944 855 (B.I.A. July 26, 2013),
19 aff’g No. A200 944 855 (Immig. Ct. N.Y. City Dec. 12, 2011).
20 We assume the parties’ familiarity with the underlying facts
21 and procedural history in this case.
22 Under the circumstances of this case, we review the
23 decisions of both the IJ and the BIA. Yun-Zui Guan v.
24 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
25 The applicable standards of review are well established.
26 See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.
2
1 Holder, 562 F.3d 510, 513 (2d Cir. 2009); Xiu Xia Lin v.
2 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
3 For applications such as Ye’s, which are governed by
4 the REAL ID Act, the agency may base a credibility finding
5 on an applicant’s demeanor, the plausibility of his account,
6 and inconsistencies in his statements, without regard to
7 whether they go “to the heart of the applicant’s claim.” 8
8 U.S.C. § 1158(b)(1)(B)(iii); see Matter of J-Y-C-, 24 I. &
9 N. Dec. 260, 265 (B.I.A. 2007). “We defer therefore to an
10 IJ’s credibility determination unless, from the totality of
11 the circumstances, it is plain that no reasonable
12 fact-finder could make such an adverse credibility ruling.”
13 Xiu Xia Lin, 534 F.3d at 167.
14 Ye contends that the credibility determination was
15 improperly based on the omission from his application that
16 the police had attempted to arrest him at home after he was
17 released from custody. Although Ye argues that this
18 omission is not an inconsistency, for purposes of analyzing
19 a credibility determination, “[a]n inconsistency and an
20 omission are . . . functionally equivalent.” Xiu Xia Lin,
21 534 F.3d at 166 n.3. Ye does not challenge the agency’s
22 finding that his explanations for this omission were
23 themselves inconsistent and further buttressed the
3
1 credibility finding. Nor does he challenge the agency’s
2 finding that this omission went to the heart of his claim.
3 See Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111-12 (2d Cir.
4 2005) (per curiam) (upholding adverse credibility
5 determination where an omission was not “incidental or
6 ancillary” but rather concerned an “essential factual
7 allegation underlying petitioner’s asylum claim”). He also
8 does not challenge the agency’s finding that his
9 corroborating evidence failed to rehabilitate his
10 credibility because his father’s letter did not mention the
11 police’s visit and his sister was unaware of the incident.
12 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
13 (per curiam) (recognizing that an applicant’s failure to
14 corroborate her testimony may bear on credibility, either
15 because the absence of particular corroborating evidence is
16 viewed as suspicious, or because the absence of
17 corroboration makes an applicant unable to rehabilitate
18 testimony that has already been called into question). He
19 has therefore failed to demonstrate “that no reasonable
20 fact-finder could make such an adverse credibility ruling.”
21 Xiu Xia Lin, 534 F.3d at 167. As a result, the agency did
22 not err in denying asylum, withholding of removal, and CAT
23 relief because all three claims shared the same factual
4
1 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
3 523 (2d Cir. 2005).
4 Ye’s contention that he demonstrated a well-founded
5 fear of future persecution based on his status as a
6 practicing Catholic, regardless of whether he credibly
7 established past persecution, is misplaced. See Paul, 444
8 F.3d at 156. In Paul, we held that the agency’s
9 determination that an applicant was not credible as to
10 claims of past persecution did not preclude the applicant
11 from demonstrating a well-founded fear of future persecution
12 based on objective evidence, where the applicant had
13 independently established that he was, in fact, a practicing
14 Christian. 444 F.3d at 155-57. Unlike Paul, however, all
15 of Ye’s claims were dependent upon his credibility because
16 the IJ did not separately find that he was a practicing
17 Catholic.
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DENIED as moot. Any pending request for
23 oral argument in this petition is DENIED in accordance with
5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
6