Miao v. Holder

13-4569
Miao v. Holder
BIA
Vomacka, IJ
A200 736 829
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 14th day of April, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 GULI MIAO,
14 Petitioner,
15
16 v. 13-4569
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gregory Marotta, Vernon, New Jersey.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
1 Assistant Director; Drew C.
2 Brinkman, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review is
10 DENIED.
11 Petitioner Guli Miao, a native and citizen of the People’s
12 Republic of China, seeks review of a November 5, 2013, decision
13 of the BIA affirming a May 14, 2012, decision of an Immigration
14 Judge (“IJ”) denying Miao’s application for asylum, withholding
15 of removal, and relief under the Convention Against Torture
16 (“CAT”). In re Guli Miao, No. A200 736 829 (B.I.A. Nov. 5,
17 2013), aff’g No. A200 736 829 (Immig. Ct. N.Y. City May 14,
18 2012). We assume the parties’ familiarity with the underlying
19 facts and procedural history in this case.
20 Under the circumstances of this case, we have reviewed both
21 the IJ’s and the BIA’s opinions “for the sake of completeness.”
22 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
23 2006). The applicable standards of review are well
24 established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
1 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The agency may,
2 “[c]onsidering the totality of the circumstances,” base a
3 credibility finding on an asylum applicant’s demeanor, the
4 plausibility of his account, and inconsistencies in his
5 statements and other record evidence “without regard to
6 whether” they go “to the heart of the applicant’s claim.”
7 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
8 Substantial evidence supports the agency’s determination that
9 Miao was not credible.
10 The agency reasonably relied on Miao’s demeanor, noting
11 that he was evasive in response to questions on
12 cross-examination that raised issues weakening his claim. See
13 8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430
14 F.3d 77, 81 n.1 (2d Cir. 2005). The IJ was not compelled to
15 credit Miao’s explanation that he had difficulty understanding
16 the interpreter. See Majidi, 430 F.3d at 80. As the IJ noted,
17 Miao admitted during the course of the hearing that he
18 understood the interpreter, he testified concisely and without
19 confusion on direct examination, and his answers on
20 cross-examination, although evasive, reflected understanding
1 of the questions posed as the answers related tangentially to
2 the issues raised.
3 The agency’s demeanor finding and the overall credibility
4 determination are bolstered by record inconsistencies and
5 implausible testimony related to, among others facts, when
6 family planning officials first visited Miao after the birth
7 of his second child, whether officials would have known that
8 his wife was hospitalized at the time of that visit, and whether
9 his wife went into hiding at her parents’ house after that visit.
10 See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d
11 Cir. 2006); see also Wensheng Yan v. Mukasey, 509 F.3d 63, 66
12 (2d Cir. 2007). Having questioned Miao’s credibility, the
13 agency reasonably relied further on his failure to provide
14 credible evidence rehabilitating his testimony. See Biao Yang
15 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
16 Given the demeanor, inconsistency, implausibility, and
17 corroboration findings, the agency’s adverse credibility
18 determination is supported by substantial evidence, and is
19 dispositive of asylum, withholding of removal, and CAT relief.
20 See 8 U.S.C. § 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F.3d
21 148, 156-57 (2d Cir. 2006).
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O=Hagan Wolfe, Clerk