Yu Yun Yang v. Holder

08-6029-ag
Yang v. Holder
BIA
Hom, IJ
A077 341 592
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.
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 4 th day of March, two thousand ten.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_______________________________________
YU YUN YANG,
Petitioner,
v. 08-6029-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; David V. Bernal, Assistant
Director; Liza S. Murcia, Attorney,
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.
Yu Yun Yang, a native and citizen of China, seeks
review of a December 3, 2008, order of the BIA affirming the
July 13, 2006, decision of Immigration Judge (“IJ”) Sandy
Hom, which denied her application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Yu Yun Yang, No. A077 341 592 (B.I.A. Dec.
3, 2008), aff’g No. A077 341 592 (Immig. Ct. N.Y. City July
13, 2006). 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. See Mei Chai Ye v. U.S. Dep’t of Justice,
489 F.3d 517, 523 (2d Cir. 2007). The applicable standards
of review are well-established. 8 U.S.C. § 1252(b)(4)(B);
see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d
Cir. 2008).
Substantial evidence supports the IJ’s adverse
credibility finding. Specifically, the IJ properly based
his adverse credibility finding on the cumulative impact of
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Yang’s demeanor, dramatic differences in her 2004 and 2006
testimony describing her abortion procedure, inconsistencies
regarding her age and the dates when officials informed her
that she must undergo a mandatory IUD insertion, and
omissions in her father’s letter regarding continued threats
from Chinese officials. See Tu Lin v. Gonzales, 446 F.3d
395, 401-02 (2d Cir. 2006). Even if we were persuaded by
Yang’s argument that it was not implausible for a doctor to
confirm her pregnancy by checking her pulse, see generally
Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 405 (2d
Cir. 2005), no remand would be required, as we can
confidently predict that “the agency would reach the same
result upon a reconsideration cleansed of errors.” Li Hua
Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 107 (2d Cir.
2006) (citing Cao He Lin, 428 F.3d 391, and Xiao Ji Chen v.
U.S. Dep’t of Justice, 434 F.3d 144 (2d Cir. 2006)).
We also find no merit in Yang’s claim that the BIA
violated her due process rights. To establish a due process
violation, an alien must demonstrate “that she was denied a
full and fair opportunity to present her claims or that the
IJ or BIA otherwise deprived her of fundamental fairness.”
Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007)
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(internal quotation marks omitted). The alien also must
demonstrate that the alleged due process violation caused
her cognizable prejudice. See Garcia-Villeda v. Mukasey,
531 F.3d 141, 149 (2d Cir. 2008). Yang has not demonstrated
that the BIA’s failure to send the initial briefing schedule
for her appeal to the correct address denied her a full
opportunity to present her claims, deprived her of
fundamental fairness, or caused her any prejudice. The BIA
granted her an extension on the basis of its mailing error
and sent the new briefing schedule to the correct address.
Nor has Yang demonstrated that the BIA violated due process
by denying her second request for an extension, where she
fails even to describe the basis for that request, which is
absent from the record.
Yang has presented no argument regarding the denial of
her applications for withholding of removal and CAT relief
or her illegal departure claim. Those issues are waived.
See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).
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
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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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