Zhong Chi Yang v. Holder , 455 F. App'x 125 ( 2012 )

11-532-ag
Yang v. Holder
BIA
Elstein, IJ
A099 670 256
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 24th day of January, two thousand twelve.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
ZHONG CHI YANG,
Petitioner,
v. 11-532-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: H. Raymond Fasano, Youman, Madeo &
Fasano, LLP, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Luis E. Perez, Senior Litigation
Counsel; Claire L. Workman, Trial
Attorney, Office of Immigration
Litigation, Civil Division, 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.
Petitioner Zhong Chi Yang, a native and citizen of China,
seeks review of a January 10, 2011, order of the BIA affirming
the June 12, 2009, decision of Immigration Judge (“IJ”)
Annette S. Elstein denying Yang’s application for relief under
the Convention Against Torture (“CAT”). In re Zhong Chi Yang,
No. A099 670 256 (B.I.A. Jan. 10, 2011), aff’g No. A099 670
256 (Immig. Ct. N.Y. City June 12, 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 decision of the IJ as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009).
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Substantial evidence supports the agency’s adverse
credibility determination. Under the REAL ID Act, which
applies to Yang’s application for relief, “an IJ may rely on
any inconsistency or omission in making an adverse credibility
determination as long as the ‘totality of the circumstances’
establishes that an asylum applicant is not credible.” Xiu
Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (emphasis
in original).
As the IJ found, Yang made inconsistent statements to a
Customs and Border Protection (“CBP”) officer and during his
testimony before the IJ regarding the amount he paid to a
snakehead to be smuggled into the United States, and conceded
that he lied to the officer about a Falun Gong asylum claim.
While Yang argues that the IJ erred in relying on the CBP
officer’s notes as they may not have been accurate, he did not
present this argument to the agency. See Lin Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 107 n.1, 122 (2d Cir.
2007)(reaffirming that this Court “may consider only those
issues that formed the basis for [the BIA’s] decision”).
Yang further argues that the agency should have
considered that he made these statements to the CBP officer
under duress from the snakehead. However, we defer to the
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agency’s rejection of that explanation, as it confirms that he
did initially lie and does not compel the conclusion that he
would not do so again. See Majidi v. Gonzales, 430 F.3d 77,
81 (2d Cir. 2005) (providing that this Court must defer to the
fact-finder’s conclusions about explanations for
inconsistencies in an applicant’s testimony unless the
applicant “demonstrate[s] that a reasonable fact-finder would
be compelled to credit his testimony”) (emphasis in original;
quotation omitted)). Moreover, as the IJ found, Yang also
made inconsistent statements concerning to whom he owed money
and Yang does not challenge this finding. Together these
inconsistencies provide substantial evidence in support of the
agency’s adverse credibility determination.
This adverse credibility determination supports the
agency’s rejection of Yang’s claim that he would be tortured
because of his illegal departure from China and failure to pay
debts as Yang did not credibly establish the factual
predicate, that he illegally left China after borrowing
substantial sums of money, for the claim. See Shou Yung Guo
v. Gonzales, 463 F.3d 109, 113-14 (2d Cir. 2006).
Additionally, Yang’s argument for CAT relief due to fear of
forced sterilization is meritless because, as the agency
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found, his fear is speculative, as he is not engaged or
married, and has no children. See Jian Xing Huang v. INS, 421
F.3d 125, 129 (2d Cir. 2005) (per curiam) (holding that,
absent solid support in the record for the petitioner’s
assertion that he would be subjected to persecution in China
because of his desire to have more children, his fear was
“speculative at best”).
Finally, we reject Yang’s argument that the BIA and the
IJ erred by requiring Yang to prove that he would be “singled
out” for torture in order to qualify for CAT relief. The
record demonstrates that, contrary to Yang’s assertions, the
agency applied the proper standard, requiring Yang to provide
evidence that petitioners in his particular circumstances were
“more likely than not to be tortured.” Lin v. U.S. Dep’t of
Justice, 432 F.3d 156, 160 (2d Cir. 2005). Substantial
evidence supports the agency’s determination that Yang has
failed to meet this burden. See id. At 159-60.
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
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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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