Shun He v. Holder , 365 F. App'x 255 ( 2010 )

09-1896-ag
He v. Holder
BIA
LaForest, IJ
A094 788 802
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 11 th day of February, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _______________________________________
12
13 SHUN HE, A/K/A HE SHUN OU YANG,
14 Petitioner,
15
16 v. 09-1896-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Michael Brown, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; John S. Hogan, Senior
27 Litigation Counsel; Aimee J.
28 Frederickson, Trial Attorney, Office
29 of Immigration Litigation, United
30 States Department of Justice, Civil
31 Division, 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 Shun He, a native and citizen of the
6 People’s Republic of China, seeks review of an April 8, 2009
7 order of the BIA affirming the February 25, 2008 decision of
8 Immigration Judge (“IJ”) Brigitte LaForest denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Shun
11 He, A094 788 802 (B.I.A. Apr. 8, 2009), aff’g No. A094 788
12 802 (Immig. Ct. N.Y. City Feb. 25, 2008). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history of this case.
15 Under the circumstances of this case, we review the
16 decision of the IJ as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534
20 F.3d 162, 167 (2d Cir. 2008).
21 Substantial evidence supports the IJ’s adverse
22 credibility determination. See Corovic v. Mukasey, 519 F.3d
23 90, 95 (2d Cir. 2008). In making her adverse credibility
24 determination, the IJ found that: (1) while He testified
2
1 that officials twice came to his home following his
2 departure from China demanding that his parents turn him
3 over to authorities, his father made no such assertion in a
4 letter he submitted; (2) He’s testimony that he rarely
5 discussed Falun Gong with others was contradicted by his
6 father’s letter; (3) He’s testimony that he was captured by
7 officials when he tripped and fell was contradicted by his
8 father’s letter. Because He does not challenge the IJ’s
9 reliance on the omission regarding the officials’ visit to
10 his parents, it stands as a valid basis for the IJ’s adverse
11 credibility determination. Biao Yang v. Gonzales, 496 F.3d
12 268, 273 (2d Cir. 2007); see also Xiu Xia Lin, 534 F.3d at
13 166 n.3. Although He argues that he explained the remaining
14 discrepancies, a reasonable factfinder would not have been
15 compelled to credit his explanations. See Majidi v.
16 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
17 In finding He not credible, the IJ additionally found
18 that: (1) in light of the very similar language used by both
19 his father and his friend in their letters, it was
20 implausible that they were written by separate individuals;
21 and (2) it was implausible that He would fear the Chinese
22 government, but nonetheless sign a statement requesting that
23 DHS notify the Chinese consulate he was in custody.
24 Contrary to He’s argument, when an alien submits two
3
1 “strikingly similar” documents allegedly provided by
2 different persons, an IJ may “treat those similarities as
3 evidence supporting an adverse credibility finding.” Mei
4 Chai Ye v. United States Dep’t of Justice, 489 F.3d 517, 519
5 (2d Cir. 2007). Moreover, despite He’s argument that the IJ
6 erred in finding him not credible by relying on his request
7 that DHS notify Chinese authorities regarding his detention,
8 we are not compelled to reach a different conclusion. See
9 Wensheng Yan v. Mukasey, 509 F.3d 63, 67-68 (2d Cir. 2007).
10 Because He was unable to meet his burden for asylum, he
11 necessarily failed to meet the higher burden required for
12 withholding of removal. See Paul v. Gonzales, 444 F.3d 148,
13 156 (2d Cir. 2006). Additionally, He fails to sufficiently
14 challenge the agency’s denial of CAT relief in his brief to
15 this Court. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
16 541 n.1, 545 n.7 (2d Cir. 2005).
17 For the foregoing reasons, the petition for review is
18 DENIED, in part, and DISMISSED, in part. Having completed
19 our review, we DISMISS the petitioner's pending motion for a
20 stay of removal as moot.
21
22
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
25
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