Zhi Yung Tian v. Holder ( 2010 )

08-3174-ag
Tian v. Holder
BIA
Videla, IJ
A079 683 166
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 22 nd day of January, two thousand ten.
5
6 PRESENT:
7 RALPH K. WINTER,
8 PIERRE N. LEVAL,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11
12 _______________________________________
13
14 ZHI YUNG TIAN,
15 Petitioner,
16
17 v. 08-3174-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL, *
21 Respondent.
22 _______________________________________
23
24
25
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Michael Brown, New York, New York.
2
3 FOR RESPONDENT: Michael F. Hertz, Assistant Attorney
4 General; Terri J. Scadron, Assistant
5 Director; Wendy Benner-León,
6 Attorney, Office of Immigration
7 Litigation, United States Department
8 of Justice, Washington, D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED, that the petition for review
13 is DENIED.
14 Zhi Yung Tian, a native and citizen of the People’s
15 Republic of China, seeks review of a June 5, 2008 order of
16 the BIA, affirming the August 12, 2005 decision of
17 Immigration Judge (“IJ”) Gabriel C. Videla, which denied his
18 application for asylum, withholding of removal, and relief
19 under the Convention Against Torture (“CAT”). In re Zhi
20 Yung Tian, No. A079 683 166 (B.I.A. June 5, 2008), aff’g No.
21 A079 683 166 (Immig. Ct. N.Y. City Aug. 12, 2005). We
22 assume the parties’ familiarity with the underlying facts
23 and procedural history in this case.
24 We review the agency’s factual findings, including
25 adverse credibility findings, under the substantial evidence
26 standard. See 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen
27 Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007). We review de
2
1 novo questions of law and the application of law to
2 undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110
3 (2d Cir. 2008).
4 The only issue before us in this case is whether the
5 agency’s adverse credibility determination was supported by
6 substantial evidence. The agency found that Tian failed to
7 demonstrate that he was eligible for asylum or withholding
8 of removal based on past persecution. Tian claimed that he
9 was detained, beaten, and fined for violating the family
10 planning policy. Tian waived any challenge to the agency’s
11 denial of his applications for asylum and withholding of
12 removal based on his claimed fear of future persecution for
13 failing to pay an outstanding family planning fine. His
14 conclusory argument fails to challenge the agency’s finding
15 that he failed to demonstrate such a fear of persecution
16 when his wife remained unharmed in China for several years
17 despite their alleged outstanding family planning fine. See
18 Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir.
19 2005). In addition, Tian abandoned any challenge to the
20 agency’s finding that he did not demonstrate his eligibility
21 for CAT relief by failing to raise any such challenge in his
22 brief.
23 Substantial evidence supports the agency’s finding that
3
1 Tian was not credible as to his claim that he suffered
2 persecution when he was detained, beaten, and fined for
3 having violated the family planning policy. In finding him
4 not credible, the IJ reasonably relied on the implausibility
5 of Tian’s assertion that his wife returned home from hiding
6 to attend mandatory family planning examinations as well as
7 his confusing testimony regarding family planning officials’
8 discovery of the birth of his second daughter. See Wensheng
9 Yan v. Mukasey, 509 F.3d 63, 66-67 (2d Cir. 2007); see also
10 Ying Li v. BCIS, 529 F.3d 79, 82 (2d Cir. 2008).
11 The IJ also reasonably found Tian not credible based in
12 part on the inconsistency between his statement in his
13 initial asylum application that his wife had been forcibly
14 aborted and his amended application and subsequent testimony
15 that his wife had not suffered such harm. See Borovikova v.
16 U.S. Dep’t of Justice, 435 F.3d 151, 158-60 (2d Cir. 2006).
17 In fact, Tian testified under oath that he was familiar with
18 the contents of his initial application for asylum and that
19 every statement in that application was correct and true.
20 Tian further admitted that the statement in his initial
21 asylum application that his wife had been forced to have an
22 abortion was read back to him by his attorney and that he
23 had not indicated that such fact was incorrect. In
4
1 addition, contrary to Tian’s argument, the record does not
2 indicate that the IJ erred in finding his attempted
3 amendment of his application belated because he waited
4 almost two years to file such correction.
5 In finding him not credible, the IJ also reasonably
6 relied on Tian’s failure to submit sufficient evidence
7 corroborating his claim that family planning officials had
8 detained and beaten him for not paying a fine. See Biao
9 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
10 (recognizing that an applicant’s failure to corroborate his
11 or her testimony may bear on credibility because the absence
12 of corroboration in general makes an applicant unable to
13 rehabilitate testimony that has already been called into
14 question); see also Maladho Djehe Diallo v. Gonzales, 445
15 F.3d 624, 633-34 (2d Cir. 2006).
16 Ultimately, because a reasonable fact-finder would not
17 be compelled to conclude to the contrary, the IJ’s adverse
18 credibility determination was supported by substantial
19 evidence. See Shu Wen Sun, 510 F.3d at 379. Thus, the
20 agency reasonably denied Tian’s applications for asylum and
21 withholding of removal insofar as they were based on his
22 claim that he had suffered past persecution when he was
23 detained and beaten for violating the family planning
24 policy. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
5
1 2006) (recognizing that a withholding of removal claim
2 necessarily fails if the applicant is unable to show the
3 objective likelihood of persecution needed to make out an
4 asylum claim and the factual predicate for the claims is the
5 same).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
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