Zhenhai Yu v. Holder ( 2010 )

09-1966-ag
Yu v. Holder
BIA
Defonzo, IJ
A088 372 222
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
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
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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 2 nd day of July, two thousand ten.
PRESENT:
JON O. NEWMAN,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
_______________________________________
ZHENHAI YU,
Petitioner,
v. 09-1966-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Dehai Zhang, Flushing, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Christopher C. Fuller,
Senior Litigation Counsel; Ann
Carroll Varnon, 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.
Zhenhai Yu, a native and citizen of the People’s
Republic of China, seeks review of an April 23, 2009 order
of the BIA affirming the November 20, 2007 decision of
Immigration Judge (“IJ”) Paul A. Defonzo, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Zhenhai
Yu, No. A088 372 222 (B.I.A. Apr. 23, 2009), aff’g No. A088
372 222 (Immig. Ct. N.Y. City Nov. 20, 2007). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we review the
IJ’s decision as supplemented by the BIA’s decision. See
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).
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I. Asylum, Withholding of Removal, and CAT Relief
Substantial evidence supports the agency’s adverse
credibility determination. Yu argues generally that the
IJ’s findings went to matters too minor to support an
adverse credibility determination. For asylum applications
governed by the REAL ID Act, the agency may, considering the
totality of the circumstances, base a credibility finding on
an asylum applicant’s “demeanor, candor, or responsiveness,”
the plausibility of his or her account, and inconsistencies
in his or her statements, without regard to whether they go
“to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 167.
Moreover, the IJ’s individual findings were not erroneous.
The IJ reasonably identified an inconsistency between
Yu’s asylum application, which stated that Chinese
authorities came to his house and threatened to arrest him
after he fled China, and Yu’s merits hearing testimony,
which failed to mention these events, despite inquiry as to
why Yu feared arrest upon return to China. The IJ further
noted that this information was also omitted from Yu’s
mother’s letter. The IJ also reasonably relied on the
inconsistency between Yu’s testimony that he used to
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practice Falun Gong with his friend only in the park and a
letter from his friend stating that she went to Yu’s house
to practice Falun Gong. To the extent that Yu offered
explanations for these discrepancies, the IJ was not
compelled to credit them. See Majidi v. Gonzales, 430 F.3d
77, 80-81 (2d Cir. 2005). Nor was he compelled to credit
Yu’s contention that proffered medical records related to an
alleged incident of mistreatment. See id. Finally, the
record plainly belies Yu’s contention that the agency failed
to consider his claim to have been beaten twice by Chinese
authorities.
Yu does not challenge the agency’s denial of his
withholding of removal or CAT claims before this Court.
Even assuming that Yu’s challenge to the IJ’s adverse
credibility determination suffices to challenge the agency’s
denial of each of his applications for relief, that
determination undermines these claims to the extent each was
based on the same factual predicate. See Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S.
Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
II. Motion to Remand
Contrary to Yu’s argument, the BIA did not abuse its
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discretion in declining to remand his proceedings to the IJ
based on the affidavits he submitted on appeal. See Li Yong
Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir.
2005). As the BIA found, the information in these
affidavits was not previously unavailable. See 8 C.F.R.
§ 1003.2(c)(1).
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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