Zhenshan Cui v. Holder ( 2012 )

10-4507-ag
Cui v. Holder
BIA
Abrams, IJ
A088 996 278
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 24th day of February, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A CABRANES,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 ZHENSHAN CUI,
14 Petitioner,
15
16 v. 10-4507-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Zhen Shan Cui, pro se, Flushing, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Paul Fiorino, Senior
28 Litigation Counsel; Franklin M.
29 Johnson, Jr., Trial Attorney, Office
30 of Immigration Litigation, U.S.
31 Department of Justice, Washington
32 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Zhenshan Cui, a native and citizen of China,
6 seeks review of the October 8, 2010 decision of the BIA
7 affirming the January 26, 2009 decision of Immigration Judge
8 (“IJ”) Steven R. Abrams. The IJ denied Zhenshan Cui’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re
11 Zhenshan Cui, No. A088 996 278 (B.I.A. Oct. 8, 2010), aff’g
12 No. A088 996 278 (Immig. Ct. N.Y. City Jan. 26, 2009). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 We have reviewed both the IJ’s and the BIA’s opinions
16 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d
17 233, 237 (2d Cir. 2008). The applicable standards of review
18 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see
19 also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.
20 2008); Aliyev v. Mukasey, 549 F.3d 111, 115 (2d Cir. 2008).
21 Substantial evidence supports the agency’s
22 determination that Cui was not credible as to her claim of
2
1 past persecution. For asylum applications governed by the
2 REAL ID Act, such as the application in this case, the
3 agency may, considering the totality of the circumstances,
4 base a credibility finding on an asylum applicant’s
5 demeanor, the plausibility of her account, and
6 inconsistencies in record evidence, without regard to
7 whether they go “to the heart of the applicant’s claim.”
8 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
9 64.
10 In finding Cui not credible, the agency reasonably
11 relied in part on her evasive demeanor and failure to
12 respond to certain questions related to her claim. See
13 8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales,
14 430 F.3d 77, 81 n.1 (2d Cir. 2005). Moreover, the agency
15 reasonably questioned Cui’s credibility based on her failure
16 to provide credible evidence corroborating her claim. See
17 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
18 Specifically, the agency reasonably questioned Cui’s
19 credibility based on her submission of a purported abortion
20 certificate as evidence of her allegedly forced abortion,
21 because “United States authorities are unaware of any so-
22 called abortion certificates and that the only document that
3
1 might resemble such a certificate is a document issued by
2 hospitals upon a patient’s request after a voluntary
3 abortion.” Xiao Xing Ni v. Gonzales, 494 F.3d 260, 263 (2d
4 Cir. 2007) (internal quotation marks omitted) (quoting
5 Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of
6 State, China: Profile of Asylum and Claims and Country
7 Conditions 24 (Apr. 14, 1998)). In addition, in this case,
8 the agency reasonably relied on additional factors to
9 question the authenticity of that certificate, noting that
10 it was not fully translated, it was issued ten years after
11 the alleged abortion, and it provided Cui’s age at the time
12 of the certificate’s issuance while inconsistently
13 identifying her employer at the time of the alleged
14 abortion. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Siewe
15 v. Gonzales, 480 F.3d 160, 169 (2d Cir. 2007).
16 Similarly, the IJ reasonably questioned the
17 authenticity of documents Cui submitted to support her
18 assertion that she had been fined twice. For example, the
19 IJ noted that the document related to her first fine was not
20 completely translated and was produced ten years after the
21 alleged fine, and on the exact same date that the
22 questionable abortion certificate was produced. See Siewe,
23 480 F.3d at 169. Thus, the adverse credibility
4
1 determination was supported by substantial evidence, and the
2 agency did not err in denying asylum, withholding of
3 removal, and CAT relief. See Xui Xia Lin, 534 F.3d at 165-
4 66.
5 Liberally construing Cui’s pro se brief as challenging
6 the agency’s determination that she failed to establish a
7 well-founded fear of forced sterilization, See Marmolejo v.
8 United States, 196 F.3d 377, 378 (2d Cir. 1999), any such
9 challenge is without merit. The agency did not err in
10 finding that Cui failed to demonstrate a well-founded fear
11 of forced sterilization. The agency reasonably found Cui’s
12 claimed fear of forced sterilization based on her desire to
13 have more than one child in the future speculative. See
14 Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005).
15 Evidence that Cui’s husband remained unharmed in China and
16 that Cui herself had remained in China unharmed, both
17 physically and economically, after the birth of her child in
18 1999, opening and operating her own successful business
19 without incident, until her departure from that country in
20 2007 supported the agency’s decision. See Melgar de Torres
21 v. Reno, 191 F.3d 307, 313 (2d Cir. 1999)(finding that where
22 asylum applicant’s mother and daughters continued to live in
23 petitioner’s native country, claim of well-founded fear was
5
1 weakened). Accordingly, the agency did not err in
2 concluding that Cui failed to demonstrate a well-founded
3 fear of persecution and that determination stands as a valid
4 basis for denying her applications for asylum, withholding
5 of removal, and CAT relief because those claims were based
6 on the same factual predicate. See Paul v. Gonzales, 444
7 F.3d 148, 156 (2d Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
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