Zu Dong Li v. Holder ( 2012 )

10-3837-ag
Li v. Holder
BIA
Mulligan, IJ
A089 255 843
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
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
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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 13th day of June, two thousand twelve.
PRESENT:
DENNIS JACOBS,
Chief Judge,
ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_______________________________________
ZU DONG LI,
Petitioner,
v. 10-3837-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Adedayo O. Idowu, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; David V. Bernal, Assistant
Director; Yedidya Cohen, Trial
Attorney, Office of Immigration
Litigation, 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 Zu Dong Li, a native and citizen of China,
seeks review of a September 1, 2010, order of the BIA
affirming the December 8, 2008, decision of Immigration
Judge (“IJ”) Thomas J. Mulligan pretermitting his
application for asylum and denying his application for
withholding of removal and relief under the Convention
Against Torture (“CAT”). In re Zu Dong Li, No. A089 255 843
(B.I.A. Sept. 1, 2010), aff’g No. A089 255 843 (Immig. Ct.
N.Y. City Dec. 8, 2008). We assume the parties’ familiarity
with the underlying facts and procedural history in this
case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s decisions. See Zaman v.
Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). 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).
Substantial evidence supports the agency’s adverse
credibility determination. Under the REAL ID Act, which
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applies to Li’s application for relief, “a trier of fact may
base a credibility determination on the demeanor, candor, or
responsiveness of the applicant.” See 8 U.S.C.
§ 1158(b)(1)(B)(iii). The IJ found that Li “was providing a
memorized script as opposed to describing real life events”
and that “[h]is answers were sometimes not even responsive
to the questions that were asked.” By way of example, the
IJ noted that, when Li was asked whether he had departed the
United States since the time of his latest documented
arrival, Li responded “I suffered persecution in China.” Li
argues that the IJ determined that he was providing scripted
testimony due to this single non-responsive answer.
However, this was not the only non-responsive answer Li
offered during his testimony. When Li was asked to give his
“true, full and correct name,” he responded “[m]y full name
is apply for political asylum.” A reasonable fact-finder
would not be compelled to accept Li’s explanations in his
brief that he was nervous, misunderstood the question, that
the interpreter made a mistake, or that he subsequently
corrected the errors. See Majidi v. Gonzales, 430 F.3d 77,
80-81 (2d Cir. 2005). Furthermore, despite Li’s argument
that he “spoke both Mandarin and Foo Chow dialect, which
would have caused confusion at the hearing,” Li was provided
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a Foo Chow interpreter, stated that he preferred to testify
in the Foo Chow dialect, indicated that he understood the
translator, and, contrary to instruction, did not inform the
court that he was unable to understand the translation. To
the extent the IJ’s determination that Li provided non-
responsive answers is construed as a demeanor finding, it is
subject to particular deference. See Majidi, 430 F.3d at 81
n.1 (the IJ “is in the best position to discern, often at a
glance, whether . . . a witness who hesitated in a response
was nevertheless attempting truthfully to recount what he
recalled of key events or struggling to remember the lines
of a carefully crafted ‘script’”).
Although Li also argues that the IJ erred in finding
that he failed to provide sufficient details regarding his
five-day detention without seeking to elicit those details
through specific questions, the IJ did in fact probe for
additional details by asking Li “what did you do during each
day? What was it like? Where specifically were you held?
What were the conditions like? And anything else that comes
to mind.” See Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 152
(2d Cir. 2003) (when an applicant gives “spare” testimony,
the fact-finder may “fairly wonder whether the testimony is
fabricated,” and “may wish to probe for incidental
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details”); cf. Jin Chen v. U.S. Dep’t of Justice, 426 F.3d
104, 114 (2d Cir. 2005) (holding that the record did not
support the agency’s adverse credibility finding in the
absence of additional probing).
Ultimately, because the credibility determination is
supported by substantial evidence, see 8 U.S.C.
§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167
(2d Cir. 2008), the agency did not err in denying Li’s
application for asylum, withholding of removal, and CAT
relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006). As the adverse credibility determination is
dispositive, we do not address Li’s additional arguments.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the 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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