Liming Wu-Fan v. Holder ( 2009 )

09-0467-ag
Wu-Fan v. Holder
BIA
Schoppert, IJ
A099 539 112
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 1 st day of December, two thousand nine.
5
6 PRESENT:
7 ROGER J. MINER,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _______________________________________
12
13 LIMING WU-FAN,
14 Petitioner,
15
16 v. 09-0467-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23
24
25
1 FOR PETITIONER: Dehai Zhang, Flushing, NY.
2
3 FOR RESPONDENT: Tony West, Assistant Attorney
4 General; Emily Anne Radford,
5 Assistant Director; Jesse Lloyd
6 Busen, Trial Attorney, Office of
7 Immigration Litigation, United
8 States Department of Justice,
9 Washington, DC.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED, that the petition for review
14 is DENIED.
15 Liming Wu-Fan, a native and citizen of the People’s
16 Republic of China, seeks review of a January 27, 2009 order
17 of the BIA, affirming the April 26, 2007 decision of
18 Immigration Judge (“IJ”) Douglas B. Schoppert, which denied
19 his application for asylum, withholding of removal, and
20 relief under the Convention Against Torture (“CAT”). In re
21 Liming Wu-Fan, No. A099 539 112 (B.I.A. Jan. 27, 2009),
22 aff’g No. A099 539 112 (Immig. Ct. N.Y. City Apr. 26, 2007).
23 We assume the parties’ familiarity with the underlying facts
24 and procedural history of this case.
25 When the BIA agrees with the IJ’s conclusion that a
26 petitioner is not credible and, without rejecting any of the
27 IJ’s grounds for decision, emphasizes particular aspects of
2
1 that decision, this Court reviews the IJ's decision
2 including the portions not explicitly discussed by the BIA.
3 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).
4 We “defer to an IJ’s credibility determination unless, from
5 the totality of the circumstances, it is plain that no
6 reasonable fact-finder could make such an adverse
7 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
8 167 (2d Cir. 2008). For asylum applications governed by the
9 REAL ID Act, the agency may, considering the totality of the
10 circumstances, base a credibility finding on an asylum
11 applicant’s demeanor, the plausibility of his or her
12 account, and inconsistencies, inaccuracies, or falsehoods in
13 his or her statements, without regard to whether they go “to
14 the heart of the applicant’s claim.” 8 U.S.C.
15 § 1158(b)(1)(B)(iii).
16 Substantial evidence supports the agency’s adverse
17 credibility determination. In finding Wu-Fan not credible,
18 the IJ reasonably relied on the striking similarities
19 between Wu-Fan’s asylum statement and a letter he submitted
20 from his father, which had purportedly been prepared
21 independently. For example, the IJ identified the paragraph
22 in Wu-Fan’s statement beginning “the good time didn’t last
3
1 long, on 7/22/1999, the Chinese Government defined FaLunGong
2 as an evil religion . . .” as almost identical to his
3 father’s statement at the paragraph beginning “[t]he good
4 time didn’t last long, on July 22, 1999, the Chinese
5 government defined FalunGong as an evil religion . . . .”
6 The IJ also identified the paragraphs in each statement
7 beginning “on July 2005, since it was Sunday . . .” as
8 strikingly similar. As we have stated, “striking
9 similarities between affidavits are an indication that the
10 statements are ‘canned,’” and as such, undermine an
11 applicant’s credibility. Mei Chai Ye v. U.S. Dep’t of
12 Justice, 489 F.3d 517, 526 (2d Cir. 2007); see also Surinder
13 Singh v. BIA, 438 F.3d at 145, 148 (2d Cir. 2006).
14 Moreover, the agency reasonably declined to credit Wu-Fan’s
15 explanations for these similarities, noting that it would be
16 impossible for independently prepared statements to be
17 virtually identical. See Majidi v. Gonzales, 430 F.3d 77,
18 80-81 (2d Cir. 2005).
19 The agency also relied on the inconsistency between Wu-
20 Fan’s testimony that his father’s letter had been sent
21 “directly” by his father, who lives in Fujian province, and
22 an envelope in the record suggesting that certain documents
4
1 had been sent from Hong Kong. Although Wu-Fan offers a
2 plausible explanation for the discrepancy in his brief to
3 this Court, he made no such argument before the BIA. We
4 will not consider his explanation in the first instance.
5 See Lin Zhong v. U.S. Dept. of Justice, 480 F. 3d 104, 107
6 (2d Cir. 2007).
7 Finally, the agency relied on a discrepancy between Wu-
8 Fan’s testimony that when practicing Falun Gong, one must
9 face east, and evidence in the record suggesting that one
10 may face in any direction. That Wu-Fan lacked this level of
11 doctrinal knowledge was an insufficient basis upon which to
12 doubt his credibility. See Yose Rizal v. Gonzales, 442 F.3d
13 84, 90 (2d Cir. 2006). Nonetheless, this erroneous finding
14 does not necessitate remand. See Xiao Ji Chen v. U.S. Dept.
15 of Justice, 471 F.3d 315, 338 (2d Cir. 2006); see also Li
16 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 111 (2d Cir.
17 2006). The agency’s overall credibility determination was
18 reasonable considering the totality of the circumstances.
19 8 U.S.C. § 1158(b)(1)(B)(iii). Thus, because the only
20 evidence of a threat to Wu-Fan’s life or freedom depended on
21 his credibility, the agency’s denial of Wu-Fan’s application
22 for asylum, withholding of removal, and CAT relief was
5
1 proper. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2 2006).
3 For the foregoing reasons, the petition for review is
4 DENIED. Having completed our review, we DISMISS the
5 petitioner's pending motion for a stay of removal as moot.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9 By:___________________________
6