Siew Voon Wong v. Holder , 453 F. App'x 115 ( 2012 )

11-534-ag
Wong v. Holder
BIA
Nelson, IJ
A098 547 400
A099 372 927
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 4th day of January, two thousand twelve.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 SIEW VOON WONG, CHUN YIP LAM,
14 Petitioners,
15
16 v. 11-534-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONERS: James Costo, Brooklyn, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Richard M. Evans, Assistant
27 Director; Aliza B. Alyeshmerni,
28 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 Petitioners Siew Voon Wong (“Wong”) and Chun Yip Lam
10 (“Lam”), natives and citizens of Malaysia, seek review of a
11 January 20, 2011, decision of the BIA affirming the January
12 28, 2009, decision of Immigration Judge (“IJ”) Barbara A.
13 Nelson, pretermitting their applications for asylum, and
14 denying withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Siew Voon Wong,
16 Chun Yip Lam a.k.a. Chunyip Lam, Nos. A098 547 400/099 372
17 927 (B.I.A. Jan. 20, 2011), aff’g Nos. A098 547 400/099 372
18 927 (Immig. Ct. N.Y.C. Jan. 28, 2009). We assume the
19 parties’ familiarity with the underlying facts and
20 procedural history in this case.
21 Under the circumstances of this case, we have reviewed
22 both the BIA’s and IJ’s opinions. See Zaman v. Mukasey, 514
23 F.3d 233, 237 (2d Cir. 2008). The applicable standards of
24 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
2
1 see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d
2 Cir. 2008). Because Wong and Lam did not challenge the
3 agency’s pretermission of their asylum claim, we address
4 only the denial of withholding of removal and CAT relief.
5 The agency reasonably found that petitioners failed to
6 establish past persecution given their lack of credibility
7 on the single incident that formed the basis of their past
8 persecution claim. See Zhong v. U.S. Dep’t of Justice, 480
9 F.3d 104, 127 (2d Cir. 2007) (finding that inconsistencies
10 at the heart of a petitioner’s asylum claim to be entitled
11 to greater legal significance in support of an adverse
12 credibility determination). In their respective asylum
13 applications, petitioners stated that Lam was attacked on
14 account of his Chinese ethnicity in 1993, but in the same
15 applications, later stated the attack occurred in 1998.
16 Before the IJ, Wong testified that the 1998 date was
17 correct, and cited an error by the preparer as the reason
18 for this inconsistency. The agency reasonably declined to
19 credit this explanation. See Majidi v. Gonzales, 430 F.3d
20 77, 81 (2d Cir. 2005). The agency also reasonably relied on
21 an inconsistency between Wong’s testimony that Lam’s scars
22 were a result of the assault, and the asylum applications
3
1 which omitted that information. The agency reasonably
2 declined to credit Wong’s explanation that they “forgot” to
3 include the information. See Majidi, 430 F.3d at 81. Given
4 these inconsistencies regarding the sole incident of alleged
5 harm, the agency’s adverse credibility determination is
6 supported by substantial evidence. See Xiu Xia Lin, 534
7 F.3d at 165-66.
8 Wong and Lam’s failure to demonstrate past persecution
9 required them to demonstrate eligibility based on a
10 reasonable fear of future persecution. See
11 8 C.F.R. § 1208.13(b)(1), (2); see also Ramsameachire v.
12 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). In establishing
13 a well-founded fear or likelihood of persecution, an
14 applicant need not “provide evidence that there is a
15 reasonable possibility he or she would be singled out
16 individually for persecution if . . . [t]he applicant
17 establishes that there is a pattern or practice in his or
18 her country of nationality . . . of persecution of a group
19 of persons similarly situated to the applicant.”
20 8 C.F.R. § 1208.13(b)(2)(iii); see also 8 C.F.R.
21 § 1208.16(b)(2)(i). Applicants claiming only a prospective
22 fear of persecution must make some showing that their
23 ethnicity will subject them to persecution. See Hongsheng
4
1 Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). Wong and
2 Lam’s argument that the agency failed to consider their
3 pattern and practice claim is unavailing because, as the IJ
4 found, they failed to demonstrate widespread violence
5 against ethnic Chinese in Malaysia. See Huang v. U.S.
6 I.N.S., 421 F.3d 125, 129 (2d Cir. 2005) (a fear is not
7 objectively reasonable if it lacks “solid support” in the
8 record and is merely “speculative at best.”); Guan Shan Liao
9 v. U.S. Dep’t of Justice, 293 F.3d 61, 68 (2d Cir. 2002)
10 (the agency does not err in addressing an uncorroborated
11 claim in summary fashion). Because Wong and Lam were unable
12 to show an objective likelihood of persecution needed to
13 make out a withholding of removal claim, they were similarly
14 unable to meet the higher standard required to succeed on a
15 claim for CAT relief as the claims were based on the same
16 facts and evidence. See Paul v. Gonzales, 444 F.3d 148, 156
17 (2d Cir. 2006).
18 We do not reach petitioners’ argument that the IJ erred
19 in relying on a 1997 Department of State Report, as that
20 argument was not raised before the agency. See Zhong, 480
21 F.3d at 107 n.1(b), 125.
22 For the foregoing reasons, the petition for review is
23 DENIED. As we have completed our review, any stay of
5
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
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