Haihua You v. Holder , 465 F. App'x 58 ( 2012 )

11-308-ag
You v. Holder
BIA
Chew, IJ
A089 252 336
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 9th day of March, two thousand twelve.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 ______________________________________
12
13 HAIHUA YOU,
14 Petitioner,
15
16 v. 11-308-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Peter Lobel, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Keith I. McManus, Senior
27 Litigation Counsel; Tracie N. Jones,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Haihua You, a native and citizen of the People’s
6 Republic of China, seeks review of a December 21, 2010
7 decision of the BIA affirming the March 4, 2009 decision of
8 Immigration Judge (“IJ”) George T. Chew, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Haihua
11 You, No. A089 252 336 (B.I.A. Dec. 21, 2010), aff’g No. A089
12 252 336 (Immig. Ct. N.Y. City Mar. 4, 2009). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have
16 considered both the IJ’s and the BIA’s opinions “for the
17 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
18 (2d Cir. 2008). The applicable standards of review are well
19 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
20 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 For asylum applications such as You’s, governed by the
22 amendments made to the Immigration and Nationality Act by
23 the REAL ID Act of 2005, the agency may, considering the
1 totality of the circumstances, base a credibility finding on
2 inconsistencies in an asylum applicant’s statements, without
3 regard to whether they go “to the heart of the applicant’s
4 claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v.
5 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We will “defer
6 to an IJ’s credibility determination unless, from the
7 totality of the circumstances, it is plain that no
8 reasonable fact-finder could make” such a ruling. Xiu Xia
9 Lin, 534 F.3d at 167. In this case, the agency reasonably
10 based its adverse credibility determination on omissions and
11 inconsistencies in You’s asylum application, testimony, and
12 corroborating evidence.
13 You indicated in his asylum application that on two
14 separate occasions, his wife had an intrauterine device
15 (“IUD”) inserted, and that after his wife’s second forced
16 abortion, he went to the family planning office to argue
17 with the officials, and was beaten so severely that he could
18 not work for a week. A letter from You’s wife also
19 indicated that she had two IUDs inserted, and that after her
20 second abortion, You was assaulted when he went to argue
21 with family planning officials. A doctor’s certificate
22 indicated that You’s wife had an abortion on August 8, 2006,
23 and that the certificate itself was issued on October 23,
1 2007. You testified that his wife never had a second IUD
2 inserted. He initially testified that he never went to the
3 family planning office; he did not testify that he was
4 beaten by family planning officials until after his attorney
5 read back to him his asylum application statement. At that
6 point, You testified that he was beaten so severely that he
7 was hospitalized for a week. You also testified that his
8 wife was issued a certificate regarding her second abortion
9 on the day of the procedure, August 8, 2006.
10 The agency based its credibility finding on these
11 omissions and inconsistencies, which were proper grounds for
12 the adverse credibility determination, see 8 U.S.C.
13 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166, and it
14 found You’s explanation for the inconsistencies
15 unsatisfactory. See Majidi v. Gonzales, 430 F.3d 77, 80-81
16 (2d Cir. 2005). The totality of the circumstances supports
17 the agency’s adverse credibility determination. See 8
18 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
19 Moreover, because the only evidence of a threat to You’s
20 life or freedom, or that he was likely to be tortured,
21 depended upon his credibility, the adverse credibility
22 determination in this case precludes success on his claims
23 for asylum, withholding of removal, and CAT relief. See
1 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong
2 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.
3 2005).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15