Fang Xin He v. Holder , 455 F. App'x 119 ( 2012 )

11-809-ag
He v. Holder
BIA
Van Wyke, IJ
A099 682 963
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 January, two thousand twelve,
5
6 PRESENT:
7 ROGER J. MINER,
8 ROBERT A. KATZMANN,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _______________________________________
12
13 FANG XIN HE,
14 Petitioner,
15
16 v. 11-809-ag
17 NAC
18 ERIC H. HOLDER JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Lee Ratner, Law Offices of Michael
24 Brown, PC, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Cindy S. Ferrier, Senior
28 Litigation Counsel; Nairi S.
29 Gruzenski, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, 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 Fang Xin He, a native and citizen of the People’s
6 Republic of China, seeks review of a February 15, 2011,
7 order of the BIA, affirming the February 11, 2009, decision
8 of Immigration Judge (“IJ”) William Van Wyke, which denied
9 He’s application for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Fang Xin He, No. A099 682 963 (B.I.A. Feb. 15, 2011), aff’g
12 No. A099 682 963 (Immigr. Ct. N.Y. City Feb. 11, 2009). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history of this case.
15 Under the circumstances of this case, we review both
16 the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008) (per curiam) (internal quotation marks omitted). The
19 applicable standards of review are well-established. See 8
20 U.S.C. § 1252(b)(4)(B) (2006); Yanqin Weng v. Holder, 562
21 F.3d 510, 513 (2d Cir. 2009).
22 For asylum applications, such as this one, governed by
23 the REAL ID Act, the agency may, considering the totality of
2
1 the circumstances, base a credibility finding on an asylum
2 applicant’s demeanor, the plausibility of his account, and
3 inconsistencies in his statements, without regard to whether
4 they go “to the heart of the applicant’s claim.” 8 U.S.C. §
5 1158(b)(1)(B)(iii) (2006). Analyzed under the REAL ID Act,
6 substantial evidence supports the agency’s adverse
7 credibility determination.
8 In finding He not credible, the agency reasonably
9 relied in part on his demeanor, finding that He’s testimony
10 was often evasive, incoherent, vague, and non-responsive.
11 See Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).
12 The IJ’s adverse credibility determination was supported
13 further by specific examples of He’s contradictory testimony
14 and written submissions, particularly with respect to the
15 date and length of his detention following his arrest in
16 China for distributing flyers promoting Falun Gong. See Xiu
17 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per
18 curiam). A reasonable fact finder would not be compelled to
19 credit He’s explanations for these inconsistencies. Majidi,
20 430 F.3d at 80–81.
21 Furthermore, contrary to He’s argument that the agency
22 failed properly to consider a hospital report that allegedly
3
1 corroborates his testimony, both the IJ and the BIA
2 expressly acknowledged the medical evidence in their
3 decisions and did not err in finding that this single
4 unauthenticated document did not eliminate the various
5 defects in He’s testimony and written submissions. See
6 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A]
7 single false document or a single instance of false
8 testimony may (if attributable to the petitioner) infect the
9 balance of the alien’s uncorroborated or unauthenticated
10 evidence”); see also Xiao Ji Chen v. U.S. Dep’t of Justice,
11 471 F.3d 315, 342 (2d Cir. 2006) (finding that the weight
12 afforded to the applicant’s evidence in immigration
13 proceedings lies largely within the discretion of the
14 agency).
15 Ultimately, because a reasonable fact-finder would not
16 be compelled to conclude to the contrary, the adverse
17 credibility determination was supported by substantial
18 evidence. See Xiu Xia Lin, 534 F.3d at 165–66. The agency’s
19 denial of He’s application for asylum and withholding of
20 removal was not in error as both claims share the same
21 factual predicate. See Paul v. Gonzales, 444 F.3d 148,
22 155–56 (2d Cir. 2006) (withholding of removal).
23
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DENIED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2) and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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