Huang Zhen Ke v. Holder ( 2010 )

09-4056-ag
Ke v. Holder
BIA
DeFonzo, IJ
A098 740 697
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 28 th day of July, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 HUANG ZHEN KE, a.k.a. WEN ZHEN KE,
14 Petitioner,
15
16 v. 09-4056-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Feng Li, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, Luis E. Perez, Senior
27 Litigation Counsel, Juria L. Jones,
28 Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Huang Zhen Ke, a native and citizen of the
6 People’s Republic of China, seeks review of a September 11,
7 2009, order of the BIA affirming the January 16, 2008,
8 decision of Immigration Judge (“IJ”) Paul A. DeFonzo,
9 denying her application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Huang Zhen Ke, No. A098 740 697 (B.I.A. Sept. 11, 2009),
12 aff’g No. A098 740 697 (Immig. Ct. N.Y. City Jan. 16, 2008).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history of the case.
15 Under the circumstances of this case, we review both
16 the IJ’s and the BIA’s opinions. See Wangchuck v. Dep’t of
17 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); Weng v. Holder, 562 F.3d 510, 513
20 (2d Cir. 2009).
21 Substantial evidence supports the IJ’s adverse
22 credibility determination. As the IJ noted: (1) although Ke
23 testified that she never practiced Falun Gong in China, a
2
1 letter from her mother stated otherwise; (2) although Ke
2 testified that she was introduced to Falun Gong in June
3 2005, a letter from her friend stated that she was
4 introduced to Falun Gong in August 2005; (3) although Ke
5 testified that she was released from detention because her
6 mother paid the authorities, a letter from her friend stated
7 that she was released because of her poor health;
8 (4) although Ke testified, and stated in her application,
9 that she had been arrested in China, she stated during her
10 airport interview that she had never been arrested; and
11 (5) in her application, Ke provided an address different
12 from the one she claimed to have lived at while in hiding.
13 Because these discrepancies were based on specific examples
14 in the record, the agency was entitled to rely on these
15 discrepancies to find Ke not credible. See 8 U.S.C.
16 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534
17 F.3d 162, 167 (2d Cir. 2008). Furthermore, the IJ
18 reasonably declined to credit Ke’s explanations, as the
19 explanations were not supported by the record. See Majidi
20 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (emphasizing
21 that the agency need not credit an applicant’s explanations
22 for inconsistent testimony unless those explanations would
23 compel a reasonable fact-finder to do so).
3
1 Accordingly, considering the totality of the
2 circumstances and all relevant factors, the IJ’s adverse
3 credibility determination was supported by substantial
4 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). As the only
5 evidence of a threat to Ke’s life or freedom depended upon
6 her credibility, the adverse credibility determination in
7 this case necessarily precludes success on her claim for
8 asylum and withholding of removal. See Paul v. Gonzales,
9 444 F.3d 148, 156 (2d Cir. 2006). Ke does not challenge the
10 agency’s denial of her CAT claim in her brief to this Court.
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
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