Xiuzhi Li v. Holder ( 2010 )

09-4209-ag
Li v. Holder
BIA
Nelson, IJ
A099 320 448
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 6 th day of August, two thousand ten.
5
6 PRESENT:
7 ROGER J. MINER,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 XIUZHI LI,
14 Petitioner,
15
16 v. 09-4209-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, New York.
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25 FOR RESPONDENT: Varuni Nelson, Scott Dunn, Margaret
26 M. Kolbe, Assistant United States
27 Attorneys (Dione M. Enea, Special
28 Assistant United States Attorney, Of
29 Counsel; Benton J. Campbell, United
30 States Attorney, Eastern District of
31 New York), Brooklyn, New York.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DENIED.
6 Xiuzhi Li, a native and citizen of the People’s
7 Republic of China, seeks review of a September 11, 2009
8 order of the BIA, affirming the December 19, 2007 decision
9 of Immigration Judge (“IJ”) Barbara A. Nelson, which denied
10 her application for asylum, withholding of removal, and
11 relief under the Convention Against Torture (“CAT”). In re
12 Xiuzhi Li, No. A099 320 448 (B.I.A. Sept. 11, 2009), aff’g
13 No. A099 320 448 (Immigr. Ct. N.Y. City Dec. 19, 2007). We
14 assume the parties’ familiarity with the underlying facts
15 and procedural history in this case.
16 Under the circumstances of this case, we review the
17 decision of the IJ as supplemented by the BIA. See Yan Chen
18 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
19 applicable standards of review are well-established. See 8
20 U.S.C. § 1252(b)(4)(B).
21 Substantial evidence supports the agency’s adverse
22 credibility determination. Xiu Xia Lin v. Mukasey, 534 F.3d
23 162, 167 (2d Cir. 2008). Under the REAL ID Act of 2005,
2
1 Pub. L. No. 109-13, 119 Stat. 302 (May 11, 2005), the agency
2 may, considering the totality of the circumstances, base a
3 credibility finding on an applicant’s demeanor, the
4 plausibility of her account, and inconsistencies in
5 statements, without regard to whether they go to the heart
6 of the asylum claim. 8 U.S.C. § 1158(b)(1)(B)(iii). Here,
7 the agency reasonably relied on: (1) inconsistencies in Li’s
8 testimony regarding the date when Chinese authorities
9 discovered her practice of Christianity and the date of her
10 baptism; (2) her demeanor; and (3) a lack of reliable
11 corroboration. See id. In addition, the agency reasonably
12 found that Li’s submission of potentially fraudulent
13 documents undermined her overall credibility. Siewe v.
14 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).
15 Accordingly, because Li based her withholding and CAT
16 claim on the same factual predicate as her asylum claim, the
17 IJ’s adverse credibility determination was fatal to her
18 application for asylum, withholding of removal, and CAT
19 relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
20 2006). Furthermore, although Li argued that she established
21 a pattern or practice of persecution against Chinese
22 Christians, substantial evidence supports the IJ’s finding
3
1 that persons similarly situated to Li are not routinely
2 singled out for persecution in China. See Hongsheng Leng v.
3 Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
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