Shi Xiang Lian v. Holder ( 2014 )

12-4761
Lian v. Holder
BIA
Christensen, IJ
A200 924 515
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 3rd day of March, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11
12 _____________________________________
13
14 SHI XIANG LIAN,
15 Petitioner,
16
17 v. 12-4761
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Scott Eric Bratton, Cleveland, OH.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Anthony W. Norwood, Senior
28 Litigation Counsel; Meadow W. Platt,
29 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 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Shi Xiang Lian, a native and citizen of China, seeks
6 review of a November 8, 2012, decision of the BIA affirming
7 an Immigration Judge’s (“IJ”) August 25, 2011, denial of
8 asylum, withholding of removal, and relief under the
9 Convention Against Torture (“CAT”). In re Shi Xiang Lian,
10 No. A200 924 515 (B.I.A. Nov. 8, 2012), aff’g No. A200 924
11 515 (Immig. Ct. N.Y. City Aug. 25, 2011). We assume the
12 parties’ familiarity with the underlying facts and
13 procedural history of this case.
14 Under the circumstances of this case, we have reviewed
15 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v.
16 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
17 standards of review are well-established. See 8 U.S.C.
18 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d
19 162, 165-66 (2d Cir. 2008).
20 For asylum applications, like Lian’s, governed by the
21 REAL ID Act, the agency may, “[c]onsidering the totality of
22 the circumstances,” base a credibility finding on
23 inconsistencies in the applicant’s statements and other
2
1 record evidence without regard to whether they go “to the
2 heart of the applicant’s claim,” demeanor and responsiveness
3 to questioning, and the “inherent plausibility” of the
4 applicant’s account. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
5 Lin, 534 F.3d at 163-64. Substantial evidence supports the
6 agency’s adverse credibility determination.
7 First, we defer to the IJ’s findings regarding
8 demeanor. The agency made a preliminary finding that Lian’s
9 demeanor suggested he was not testifying from actual
10 experience, but rather, from a scripted account of events.
11 This type of finding is “paradigmatically the sort of
12 evidence that a fact-finder is best positioned to evaluate.”
13 Li Zu Guan v. INS, 453 F.3d 129, 140 (2d Cir. 2006).
14 The adverse credibility determination is further
15 supported by the IJ’s identification of inconsistencies.
16 First, Lian was inconsistent regarding the date of an
17 alleged detention, testifying that he was detained on June
18 25, but stating in his application that his detention began
19 on June 20. A second inconsistency involved the reason he
20 was released from a second detention. Lian testified that
21 he was detained a second time when authorities found him and
22 his pregnant wife in hiding, but when asked why he was
23 released, Lian stated that authorities had located his wife.
3
1 The agency was not required to accept Lian’s explanation
2 that these inconsistencies were a result of his nervousness
3 and purported confusion over the scope of the questions
4 being asked. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
5 Cir. 2005).
6 The agency’s implausibility findings provide additional
7 support as “[i]t is well settled that, in assessing the
8 credibility of an asylum applicant’s testimony, an IJ is
9 entitled to consider whether the applicant’s story is
10 inherently implausible.” Wensheng Yan v. Mukasey, 509 F.3d
11 63, 66 (2d Cir. 2007). First, the agency reasonably
12 questioned the plausibility of Lian’s assertion that his
13 wife’s IUD “fell out” twice, and on each occasion, she
14 became pregnant. Second, the agency reasonably doubted the
15 plausibility of Lian’s account that he remained detained for
16 17 days because family planning officials wanted him to
17 divulge his wife’s location given that she was hiding at her
18 parents’ home and could easily have been located. Third,
19 the agency properly questioned Lian’s testimony that he
20 received medical treatment for injuries inflicted in
21 detention as he gave contradictory statements about where he
22 received treatment and how he located a doctor. In light of
23 the lack of credible testimony regarding the alleged
4
1 injuries and medical treatment, the agency also properly
2 considered the lack of corroborating medical evidence. See
3 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
4 Given Lian’s problematic demeanor, the inconsistencies
5 and implausibilities in his testimony and application, and
6 the lack of corroborating evidence, all of which relate to
7 his allegations of past harm, the agency’s adverse
8 credibility determination is supported by substantial
9 evidence, and is dispositive of Lian’s claims for asylum,
10 withholding of removal, and CAT relief. See Xiu Xia Lin,
11 534 F.3d at 167; see also Paul v. Gonzales, 444 F.3d 148,
12 156 (2d Cir. 2006).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
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