Ping Wu v. Holder , 436 F. App'x 41 ( 2011 )

10-5013-ag
Wu v. Holder
BIA
Mulligan, IJ
A094 939 275
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 25th day of October, two thousand eleven.
PRESENT:
JOSÉ A. CABRANES,
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
PING WU,
Petitioner,
v. 10-5013-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Michael Brown, New York, NY.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Daniel E. Goldman, Senior
Litigation Counsel; Jem C. Sponzo,
Trial Attorney, Office of
Immigration Litigation, U.S.
Department of Justice, Washington,
DC.
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.
Ping Wu, a native and citizen of the People’s Republic
of China, seeks review of the November 30, 2010, order of
the BIA affirming the August 31, 2009, decision of
Immigration Judge (“IJ”) Thomas J. Mulligan denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Ping
Wu, No. A094 939 275 (B.I.A. Nov. 30, 2010), aff’g No. A094
939 275 (Immig. Ct. N.Y. City Aug. 31, 2009). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). “We review
the agency's factual findings, including adverse credibility
determinations, under the substantial evidence standard,
treating them as ‘conclusive unless any reasonable
adjudicator would be compelled to conclude to the
contrary.’” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d
Cir. 2008) (quoting 8 U.S.C. § 1252(b)(4)(B)). “When
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evaluating credibility determinations for substantial
evidence, we afford particular deference to the IJ,” and
“[w]here the IJ's adverse credibility finding is based on
specific examples of inconsistent statements or
contradictory evidence, a reviewing court will generally not
be able to conclude that a reasonable adjudicator was
compelled to find otherwise.” Id. at 165-66 (internal
quotation marks and ellipsis omitted); see also
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
The agency’s adverse credibility determination is based
on substantial evidence, given the inconsistencies in Wu’s
testimony, his credible-fear interview, and the testimony of
his witness, and in light of the IJ’s demeanor finding. As
the agency found, while Wu testified that he suffered two
incidents of harm in China – an arrest and beating in 2002
and an attempted arrest in 2006 – he failed to mention the
2002 incident during his credible-fear interview. See 8
U.S.C. § 1158(b)(1)(B)(iii) (providing that an adverse
credibility determination may be based on “the consistency
between the applicant’s or witness’s written and oral
statements . . . , and any inaccuracies or falsehoods in
such statements, without regard to whether an inconsistency
. . . goes to the hear of the applicant’s claim.”).
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The agency was not compelled to accept Wu’s explanation
that he had failed to mention the 2002 arrest because he had
not been asked about harm he suffered due to his support of
Falun Gong and because he had not considered arrest by a
village committee to constitute an arrest. In addition to
being asked questions about arrest, Wu was asked whether he
had any other reason to fear being returned to China.
Accordingly, the agency did not need to credit his
explanations for his inconsistent statements; they were not
explanations that would compel a reasonable factfinder to
accept them. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005).
The IJ’s adverse credibility determination is further
supported by an inconsistency, albeit a minor one, between
Wu’s and his witnesses’s testimony. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). The IJ’s demeanor finding also
provides additional support for the adverse credibility
determination, as the IJ found that on several occasions,
supported by the record, Wu paused before responding to
questions and appeared to be testifying from a script rather
than actual experience. See Dong Gao v. BIA, 482 F.3d 122,
126-27 (2d Cir. 2007) (providing that this Court grants
“particular deference” in applying the substantial evidence
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standard to credibility findings based on demeanor).
After concluding that the IJ “had cogent reasons for
distrusting the veracity of [Wu’s] claim of past
persecution,” the BIA noted that “[a]t a minimum, the [IJ]
was justified in mandating [Wu’s] presentation of additional
corroboration for the specific facts of his claim.” The
BIA’s finding was reasonable, as an asylum applicant’s
failure to corroborate his testimony may bear on his
credibility, “because the absence of corroboration in
general makes an applicant unable to rehabilitate testimony
that has already been called into question.” See Biao Yang
v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007); Chuilu Liu v.
Holder, 575 F.3d 193, 198 n.5 (2d Cir. 2009). Contrary to
Wu’s argument, the agency does not first need to identify
the particular pieces of missing, relevant evidence, and
show that this evidence was reasonably available to the
applicant, before relying on a lack of corroboration to
support an adverse credibility finding. See Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 2006).
Moreover, the agency did not err in declining to give
significant weight to the statements Wu provided from his
family and friends. See id. at 342 (the weight afforded to
an applicant’s evidence in immigration proceedings lies
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largely within the discretion of the agency).
Given Wu’s inconsistencies, demeanor, and lack of
corroboration, substantial evidence supports the agency’s
adverse credibility determination. Accordingly, the agency
did not err in denying Wu’s applications for asylum,
withholding of removal, and CAT relief, as those claims were
all based on the same factual predicate. See Paul v.
Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006); Xue Hong Yang
v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
The agency also reasonably found that Wu did not
demonstrate eligibility for relief based on his testimony
and photographs of his practice of Falun Gong and
participation in a demonstration in the United States
because Wu did not present any evidence indicating that the
Chinese government was aware or likely to become aware of
those activities. See Jian Xing Huang v. INS, 421 F.3d 125,
129 (2d Cir. 2005) (holding that a fear of future
persecution is not objectively reasonable if it lacks “solid
support” in the record and is merely “speculative at best”);
Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008)
(holding that to show an objectively reasonable fear of
future persecution, an applicant must establish that he
would be singled out for persecution or that there was a
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pattern or practice of persecution of similarly-situated
individuals).
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.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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