Huazi Li v. Holder ( 2013 )

12-616
Li v. Holder
BIA
Nelson, IJ
A087 435 783
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of July, two thousand thirteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 PIERRE N. LEVAL,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _____________________________________
12
13 HUAZI LI,
14 Petitioner,
15
16 v. 12-616
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Joan Xie, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Cindy S. Ferrier,
27 Assistant Director; Tracie N. Jones,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Petitioner Huazi Li, a native and citizen of China,
6 seeks review of a February 9, 2012, order of the BIA,
7 affirming the August 25, 2010, decision of Immigration Judge
8 (“IJ”) Barbara A. Nelson, which pretermitted, as untimely,
9 her application for asylum and denied withholding of removal
10 and relief under the Convention Against Torture (“CAT”). In
11 re Huazi Li, No. A087 435 783 (B.I.A. Feb. 9, 2012), aff’g
12 No. A087 435 783 (Immig. Ct. New York City Aug. 25, 2010).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case. The untimeliness ruling
15 is not challenged on this petition for review.
16 Under the circumstances of this case, we have reviewed
17 the decisions of both the IJ and the BIA. See Yun-Zui Guan
18 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
19 The applicable standards of review are well-established.
20 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
21 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
22 Li contests only the agency’s denial of withholding of
23 removal on appeal. See Yueqing Zhang v. Gonzales, 426 F.3d
24 540, 541 n.1, 545 n.7 (2d Cir. 2005).
2
1 For applications such as Li’s, which are governed by
2 the REAL ID Act, the agency may base a credibility finding
3 on an applicant’s demeanor, the plausibility of her account,
4 and inconsistencies in her statements, without regard to
5 whether they go “to the heart of the applicant’s claim.”
6 8 U.S.C. § 1158(b)(1)(B)(iii). We “defer to an IJ’s
7 credibility determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder
9 could make such an adverse credibility ruling.” Xiu Xia
10 Lin, 534 F.3d at 167.
11 Contrary to Li’s assertions, the agency reasonably
12 found that she was not credible due to the omission of her
13 alleged custodial beating from her written application and
14 testimony on direct examination. See 8 U.S.C.
15 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166
16 (providing that, for purposes of analyzing a credibility
17 determination, “[a]n inconsistency and an omission are . . .
18 functionally equivalent”). Li recounted the alleged
19 custodial beating on cross-examination. While Li argues that
20 the IJ’s adverse credibility determination was improperly
21 based on a single omission, “an IJ may rely on any
22 inconsistency or omission in making an adverse credibility
3
1 determination as long as the ‘totality of the circumstances’
2 establishes that an asylum applicant is not credible.” See
3 Xiu Xia Lin, 534 F.3d at 167 (emphasis in original). As the
4 agency reasonably noted, Li’s omission concerned the only
5 physical harm that she allegedly suffered, and Li does not
6 dispute the fundamental importance of this omission or argue
7 that it was sufficiently explained. Accordingly, we find
8 that the agency’s adverse credibility determination is
9 supported by substantial evidence. See Xiu Xia Lin, 534
10 F.3d at 166.
11 Because the agency’s denial of withholding of removal
12 is supported on credibility grounds, we decline to consider
13 Li’s challenge to the agency’s alternative basis for
14 denial–that she failed to establish a nexus between any harm
15 she suffered and a protected ground. See INS v. Bagamasbad,
16 429 U.S. 24, 25 (1976) (“As a general rule courts and
17 agencies are not required to make findings on issues the
18 decision of which is unnecessary to the results they
19 reach.”).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
4
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
5