Fei Yang v. Holder , 445 F. App'x 448 ( 2011 )

10-5239-ag
Yang v. Holder
BIA
Hom, IJ
A089 254 130
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 17th day of November, two thousand eleven.
PRESENT:
DENNIS JACOBS,
Chief Judge,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
FEI YANG,
Petitioner,
v. 10-5239-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Peter Lobel, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Carl H. McIntyre, Jr.,
Assistant Director; Christina J.
Martin, Trial Attorney, Office of
Immigration Litigation, 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 Fei Yang, a native and citizen of China,
seeks review of the December 3, 2010, decision of the BIA
affirming the May 14, 2009, decision of Immigration Judge
(“IJ”) Sandy Hom denying his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Fei Yang, No. A089 254 130
(B.I.A. Dec. 3, 2010), aff’g No. A089 254 130 (Immig. Ct.
N.Y. City May 14, 2009). We assume the parties’ familiarity
with the underlying facts and procedural history in this
case.
Under the circumstances of this case, we use the BIA’s
opinion as “the basis for judicial review.” 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); see also Xiu Xia Lin v. Mukasey, 534 F.3d
162, 165-66 (2d Cir. 2008); Bah v. Mukasey, 529 F.3d 99, 110
(2d Cir. 2008).
As an initial matter, although generally we lack
jurisdiction to review the agency’s pretermission of Yang’s
asylum application, see 8 U.S.C. § 1158(a)(3), we retain
jurisdiction to review constitutional claims and “questions
of law,” 8 U.S.C. § 1252(a)(2)(D). Contrary to Yang’s
assertion, the IJ applied the correct legal standard in
requiring him to show “by clear and convincing evidence”
that he had filed his asylum application within one year
after his arrival in the United States. 8 U.S.C.
§ 1158(a)(2)(B). Moreover, the IJ did not commit legal
error by affording Yang’s marriage registration certificate
little weight given that, as the agency found, it was not
authenticated by any means. See Xiao Ji Chen v. U.S. Dep't
of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (concluding
that the weight afforded to an applicant’s evidence in
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immigration proceedings lies largely within the agency’s
discretion).
As to the agency’s adverse credibility determination,
we defer to the finding “unless, from the totality of the
circumstances, it is plain that no reasonable fact-finder
could make such an adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 165-66. For asylum applications, such as
Yang’s, governed by the REAL ID Act, the agency may,
“[c]onsidering the totality of the circumstances, . . . base
a credibility determination on the demeanor, candor, or
responsiveness of the applicant . . . , the consistency
between the applicant’s or witness’s written and oral
statements . . . , [and] the consistency of such statements
with other evidence of record . . . without regard to
whether an inconsistency . . . goes to the heart of the
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 163-64.
Substantial evidence supports the agency’s adverse
credibility determination. In finding Yang not credible,
the agency reasonably relied upon inconsistencies between
Yang’s testimony and the details in his asylum application
regarding the location of his arrest, as well as his
inconsistent explanations when asked to clarify his
testimony. The agency also reasonably relied on the vague
and inconsistent nature of Yang’s responses to questions
about the differences between registered and unregistered
churches and his own religious practices. Moreover, given
the non-responsiveness of his explanations, a reasonable
fact finder would not be compelled to credit them. See
Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
Having questioned Yang’s credibility, the IJ reasonably
relied further on Yang’s failure to provide reliable
evidence corroborating his assertions that he was involved
in an underground church in China and that he continued to
practice Christianity in the United States. See Biao Yang
v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (recognizing
that a failure to corroborate may bear on credibility,
either because the absence of particular corroborating
evidence is viewed as suspicious, or because the absence of
corroboration in general makes an applicant unable to
rehabilitate testimony that has already been called into
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question). Contrary to Yang’s contention, before relying on
a lack of corroboration to support an adverse credibility
finding the IJ was not required to first identify the
particular pieces of what he thought was missing relevant
evidence and then determine that this evidence was
reasonably available. See Xiao Ji Chen, 471 F.3d at 341
(holding that these steps are not required when the
applicant is not otherwise credible). Furthermore, the
agency did not err in relying on the adverse credibility
determination both as an alternative basis for denying
asylum relief and as a ground for denying withholding of
removal, as both claims were based on the same factual
predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006); see also Xue Hong Yang v. U.S. Dep’t of Justice, 426
F.3d 520, 523 (2d Cir. 2005) (same, with respect to CAT).
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 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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