Xu Jie Dong v. Holder , 367 F. App'x 243 ( 2010 )

09-2871-ag
Dong v. Holder
BIA
Sichel, IJ
A099 023 560
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 1 st day of March, two thousand ten.
PRESENT:
ROBERT D. SACK,
RICHARD C. WESLEY,
PETER W. HALL,
Circuit Judges.
______________________________________
XU JIE DONG,
Petitioner,
v. 09-2871-ag
NAC
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Sheema Chaudhry, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Luis E. Perez, Senior
Litigation Counsel; Briena L.
Strippoli, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Xu Jie Dong, a native and citizen of the People’s
Republic of China, seeks review of a June 19, 2009, order of
the BIA affirming the October 19, 2007, decision of
Immigration Judge (“IJ”) Helen J. Sichel, which denied
Dong’s application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Xu Jie Dong, No. A099 023 560 (BIA June 19, 2009), aff’g No.
A099 023 560 (Immig. Ct. N.Y. City Oct. 19, 2007). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we review the
IJ’s decision including the portions not explicitly
discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d
391, 394 (2d Cir. 2005). The applicable standards of review
are well-established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); Salimatou
Bah v. Mukasey, 529 F.3d 99, 104 (2d Cir. 2008).
Substantial evidence supports the agency’s adverse
credibility determination. See Xiu Xia Lin, 534 F.3d at
167. The IJ reasonably relied on petitioner’s omission from
his asylum application of any claim that he was detained and
beaten on account of his resistance to China’s family
planning policy. Although petitioner argues that he failed
to include this information in his application because he
thought it was unnecessary, that argument does not compel us
to find error in the IJ’s decision. Id. Indeed, the IJ
reasonably surmised that petitioner had augmented his
earlier claim to fit the change in law after our decision in
Shi Liang Lin v. U.S. Department of Justice, 494 F.3d 296(2d Cir. 2007), particularly because both his initial asylum
application and his wife’s affidavit contained significant
amounts of detail about other aspects of his claim. See
Cheng Tong Wang v. Gonzales, 449 F.3d 451, 453 (2d Cir.
2006) (finding that the applicant’s omission of his wife’s
forced sterilization was material to the applicant’s claim
irrespective of the fact that it occurred at a time when
that sterilization would not have been, on its own,
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sufficient to establish asylum eligibility, because the
basis for the applicant’s original asylum claim was his
opposition to China’s family planning policy). Accordingly,
the IJ’s adverse credibility determination was supported by
substantial evidence. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),
1252(b)(4)(B).
Because petitioner’s claims were all based on the same
factual predicate, the agency’s denial of his application
for asylum, withholding of removal, and CAT relief was
proper. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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