Di Deng v. Lynch

14-1920
Deng v. Lynch
BIA
Christensen, IJ
A200 924 585
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 17th day of September, two thousand fifteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 SUSAN L. CARNEY,
10 CHRISTOPHER F. DRONEY,
11 Circuit Judges.
12 _____________________________________
13
14 DI DENG,
15 Petitioner,
16
17 v. 14-1920
18 NAC
19
20 LORETTA E. LYNCH, UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Gary J. Yerman, Yerman & Associates,
26 LLC, New York, New York.
27
28 FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
29 Attorney General; Blair O’Connor,
30 Assistant Director; Timothy Bo
1 Stanton, Trial Attorney, Office of
2 Immigration Litigation, United States
3 Department of Justice, Washington D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Di Deng, a native and citizen of China, seeks review of a
10 May 21, 2014 decision of the BIA affirming the September 30,
11 2011 decision of an Immigration Judge (“IJ”), which denied his
12 application for asylum, withholding of removal, and relief
13 pursuant to the Convention Against Torture (“CAT”). In re Di
14 Deng, No. A200 924 585 (B.I.A. May 21, 2014), aff’g No. A200
15 924 585 (Immig. Ct. N.Y.C. Sept. 30, 2011). We assume the
16 parties’ familiarity with the underlying facts and procedural
17 history in this case.
18 We have reviewed the decisions of both the IJ and the BIA
19 “for the sake of completeness.” Wangchuck v. Dep’t of Homeland
20 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
21 standards of review are well established. 8 U.S.C.
22 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
23 Cir. 2009).
24 For asylum applications that, like Deng’s, are governed by
25 the REAL ID Act of 2005, the agency may, “[c]onsidering the
2
1 totality of the circumstances,” base a credibility
2 determination on inconsistencies in an asylum applicant’s
3 statements and other record evidence, “without regard to
4 whether” they go “to the heart of the applicant’s claim.” 8
5 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
6 credibility determination unless, from the totality of the
7 circumstances, it is plain that no reasonable fact-finder could
8 make such an adverse credibility ruling.” Xiu Xia Lin v.
9 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam). In
10 Deng’s case, substantial evidence supports the agency’s adverse
11 credibility determination.
12 First, the agency reasonably afforded less weight to Deng’s
13 testimony regarding his detention because it was vague in
14 comparison to other testimony. See Shunfu Li v. Mukasey, 529
15 F.3d 141, 147 (2d Cir. 2008). The vagueness finding was
16 bolstered by numerous inconsistencies in the record.
17 Second, the agency reasonably relied on Deng’s
18 inconsistent statements regarding whether he had problems with
19 the police after his arrest. Deng initially testified that,
20 following his arrest, he had no “further problems” with the
21 police. However, he later testified that he went into hiding
22 because the police continued to look for him. The agency was
23 not required to credit his explanation that he meant only that
3
1 the police had not beaten him again, because the open-ended
2 question whether he had “any further problems” with police
3 encompassed more than beatings. See Majidi v. Gonzales, 430
4 F.3d 77, 80-81 (2d Cir. 2005).
5 Third, the agency also reasonably considered Deng’s
6 failure to mention in his asylum application and personal
7 statement that he went into hiding following his arrest. See
8 Xiu Xia Lin, 534 F.3d at 166 n.3. Although Deng’s personal
9 statement and a letter from his parents mentioned that Deng was
10 often “harassed” by police following his arrest, neither stated
11 that he went into hiding for any period of time. The agency
12 was not compelled to credit Deng’s explanation for the omission—
13 that he “forgot” to mention that he went into hiding. See
14 Majidi, 430 F.3d at 80-81.
15 Having questioned Deng’s credibility, the agency
16 reasonably determined that his corroborating evidence did not
17 rehabilitate his claim or independently satisfy his burden of
18 proof. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
19 2007).
20 Given the inconsistencies and lack of corroboration, the
21 totality of the circumstances supports the agency’s adverse
22 credibility determination. See Xiu Xia Lin, 534 F.3d at 167.
23 That determination is dispositive of his claims for asylum,
4
1 withholding of removal, and CAT relief as they rest on the same
2 factual predicate. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
3 Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is VACATED,
7 and any pending motion for a stay of removal in this petition
8 is DISMISSED as moot. Any pending request for oral argument
9 in this petition is DENIED in accordance with Federal Rule of
10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
11 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
5