Feng Ming He v. Holder ( 2013 )

12-849
He v. Holder
BIA
Balasquide, IJ
A087 443 521
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 13th day of September, two thousand thirteen.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 FENG MING HE,
14 Petitioner,
15
16 v. 12-849
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Troy Nader Moslemi, Moslemi and
24 Associates, Inc., New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Emily Anne
28 Radford, Assistant Director; Aric A.
29 Anderson, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Feng Ming He, a native and citizen of the People’s
10 Republic of China, seeks review of a February 7, 2012,
11 decision of the BIA affirming the January 25, 2010, decision
12 of Immigration Judge (“IJ”) Javier Balasquide, which denied
13 his application for asylum, withholding of removal and
14 relief under the Convention Against Torture (“CAT”). In re
15 Feng Ming He, No. A087 443 521 (B.I.A. Feb. 7, 2012), aff’g
16 No. A087 443 521 (Immig. Ct. N.Y. City Jan. 25, 2010). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decision as supplemented by the BIA. See Yan Chen
21 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
22 applicable standards of review are well-established. See
23 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,
24 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
2
1 For asylum applications, such as He’s, governed by the
2 amendments made to the Immigration and Nationality Act by
3 the REAL ID Act of 2005, the agency may, considering the
4 totality of the circumstances, base a credibility finding on
5 the applicant’s inconsistent testimony, without regard to
6 whether the inconsistencies go “to the heart of the
7 applicant’s claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
8 Xia Lin, 534 F.3d at 167.
9 The agency found that He was incredible based on his
10 inconsistent testimony regarding his son’s birth, baptism,
11 and death. He challenges the adverse credibility
12 determination, contending that the inconsistencies were
13 merely minor, and that they can be explained by memory
14 issues and psychological trauma. However, the agency “may
15 rely on any inconsistency [] in making an adverse
16 credibility determination,” where, as here, the totality of
17 the circumstances establishes the applicant is incredible.
18 Xiu Xia Lin, 534 F.3d at 167 (emphasis in original). He’s
19 explanations are insufficient to compel the conclusion that
20 his testimony was credible, especially given his statement
21 that his son’s tragic death triggered his interest in
22 Christianity, the basis of his persecution claim. Majidi v.
23 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
3
1 As the only evidence of a threat to He’s life or
2 freedom depended upon his credibility, the adverse
3 credibility determination in this case necessarily precludes
4 success on his claims for asylum, withholding of removal,
5 and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
6 Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
7 520, 523 (2d Cir. 2005).
8 For the foregoing reasons, the petition for review is
9 DENIED.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
4