Yu Ji Ou v. Holder ( 2011 )

10-2834-ag
Ou v. Holder
BIA
Mulligan, IJ
A094-933-410
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 24th day of August, two thousand eleven.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 YU JI OU,
14 Petitioner,
15
16 v. 10-2834-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: G. Victoria Calle, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Blair T. O’Connor, Senior
28 Litigation Counsel; Edward C.
29 Durant, Attorney, Office of
30 Immigration Litigation; Civil
31 Division, U.S. Department of
32 Justice, 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 Yu Ji Ou, a Chinese native and citizen, seeks review of
6 a BIA order affirming an Immigration Judge decision that
7 denied his application for asylum, withholding of removal,
8 and relief under the Convention Against Torture (“CAT”). In
9 re Yu Ji Ou, No. A094 933 410 (B.I.A. June 18, 2010), aff’g
10 No. A094 933 410 (Immig. Ct. N.Y. City Aug. 5, 2008). We
11 assume the parties’ familiarity with the underlying facts
12 and procedural history. We have considered the IJ’s and
13 BIA’s opinions “for the sake of completeness.” Zaman v.
14 Mukasey, 514 F.3d 233, 237 (2d Cir. 2008).
15 I. Credibility and Corroboration
16 We review factual findings, including an adverse
17 credibility determination, for substantial evidence. See 8
18 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519
19 F.3d 90, 95 (2d Cir. 2008). In this case, substantial
20 evidence supports the IJ’s adverse credibility
21 determination. The IJ found that Ou was not credible based
22 on: (1) his demeanor; (2) omissions from his father’s
23 letter and his asylum application that a doctor treated him
2
1 for injuries he suffered while in detention; and (3) his
2 failure to submit reasonably available corroborating
3 evidence, such as a letter from the doctor who treated him
4 and testimony or an affidavit from the aunt with whom he was
5 living in the United States. The IJ reasonably relied on
6 Ou’s demeanor, see 8 U.S.C. § 1158(b)(1)(B)(iii), and we
7 defer to the IJ’s negative credibility assessment, see
8 Majidi v. Gonzales, 430 F.3d 77, 80 n.1 (2d Cir. 2005). The
9 IJ also reasonably relied on the omission from Ou’s asylum
10 application and his father’s letter of any reference that he
11 received medical treatment in China. See 8 U.S.C.
12 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
13 166-67 (2d Cir. 2008).
14 Because Ou’s credibility had already been called into
15 question due to his demeanor and his omission regarding his
16 medical treatment, the IJ reasonably required corroborating
17 evidence. Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
18 2007). The IJ reasonably rejected Ou’s explanations that he
19 omitted his injuries from his asylum application because
20 they “were not a big deal” and that he failed to provide the
21 missing corroborating evidence because he did not think it
22 necessary, particularly because he claimed that a doctor had
23 treated him four to five times. See Majidi, 430 F.3d at 80-
24 81.
3
1 II. The IJ’s Denial of Ou’s Request for a Continuance
2 We review the BIA’s order affirming the IJ’s decision
3 that denied Ou a continuance for abuse of discretion. See
4 Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006). IJs
5 have “broad discretion” and “are accorded wide latitude in
6 calendar management.” Morgan v. Gonzales, 445 F.3d 549, 551
7 (2d Cir. 2006). Here, the IJ was not required to grant Ou a
8 continuance so that he could obtain letters from his doctor
9 and his aunt. He could have collected this evidence in
10 anticipation of the hearing. Chuilu Liu v. Holder, 575 F.3d
11 193, 198 n.6 (2d Cir. 2009). Ou bore the responsibility of
12 producing all evidence relevant to his case prior to his
13 hearing date. See 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R.
14 § 1208.13; see Xiao Ji Chen v. U.S. Dep’t of Justice, 471
15 F.3d 315, 341 (2d Cir. 2006).
16 Because, based on the totality of the circumstances, Ou
17 was not credible and did not produce corroborating evidence
18 to rehabilitate his testimony, the IJ did not abuse his
19 discretion by denying Ou’s application for asylum. The IJ’s
20 adverse credibility finding is also fatal to Ou’s
21 application for withholding of removal and CAT relief
22 because his claims were based on the same factual predicate.
23 See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir. 2006).
24
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, Petitioner’s
3 motion for a stay of removal is DISMISSED as moot and his
4 temporary stay of removal is VACATED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
5