Gao Wei v. Lynch

13-4691
Wei v. Lynch
BIA
Hom, IJ
A089 821 581
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
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 1st day of September, two thousand fifteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 GAO WEI,
14 Petitioner,
15
16 v. 13-4691
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,*
20 Respondent.
21 _____________________________________
22
23
24
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.,
as the Respondent in this case.
1 FOR PETITIONER: Lewis G. Hu, New York, New York.
2
3 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
4 General; Greg D. Mack, Senior
5 Litigation Counsel; Shahrzad Baghai,
6 Trial Attorney, Office of
7 Immigration Litigation, United
8 States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review
14 is DENIED.
15 Gao Wei, a native and citizen of China, seeks review of
16 a November 14, 2013, decision of the BIA affirming the May
17 1, 2012, decision of an Immigration Judge (“IJ”), denying
18 her application for asylum, withholding of removal, and
19 relief pursuant to the Convention Against Torture (“CAT”).
20 In re Gao Wei, No. A089 821 581 (B.I.A. Nov. 14, 2013),
21 aff’g No. A089 821 581 (Immig. Ct. N.Y. City May 1, 2012).
22 We assume the parties’ familiarity with the underlying facts
23 and procedural history in this case.
24 We have reviewed the decisions of the IJ and the BIA
25 “for the sake of completeness.” Wangchuck v. Dep’t of
26 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
2
1 applicable standards of review are well established. See
2 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
3 510, 513 (2d Cir. 2009).
4 We find no error in the agency’s determination that Wei
5 was not credible. For asylum applications like Wei’s,
6 governed by the REAL ID Act of 2005, the agency may,
7 “[c]onsidering the totality of the circumstances,” base a
8 credibility finding on an asylum applicant’s demeanor, the
9 plausibility of her account, and inconsistencies in her
10 statements and other record evidence, “without regard to
11 whether” they go “to the heart of the applicant’s claim.” 8
12 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
13 credibility determination unless, from the totality of the
14 circumstances, it is plain that no reasonable fact-finder
15 could make such an adverse credibility ruling.” Xiu Xia Lin
16 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
17 The record supports the agency’s finding that Wei was
18 at times hesitant and unresponsive while testifying about
19 her participation in Chinese Democratic Party (“CDP”)
20 activities as well as other matters. See Majidi v.
21 Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005). The demeanor
22 finding and the agency’s adverse credibility determination
23 as a whole were bolstered by inconsistencies in the record
3
1 regarding when Wei participated in protests at a Chinese
2 consulate and who filed her application for asylum. See Li
3 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.
4 2006) (“We can be still more confident in our review of
5 observations about an applicant’s demeanor where, as here,
6 they are supported by specific examples of inconsistent
7 testimony.”). The agency was not compelled to credit her
8 explanations for these inconsistencies. See Majidi, 430
9 F.3d at 80-81.
10 Given the agency’s demeanor and inconsistency findings,
11 substantial evidence supports the agency’s determination
12 that Wei was not credible as to her participation in CDP
13 activities. See Xiu Xia Lin, 534 F.3d at 167. That
14 determination was dispositive of asylum, withholding of
15 removal, and CAT relief.
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of
18 removal that the Court previously granted in this petition
19 is VACATED, and any pending motion for a stay of removal in
20 this petition is DISMISSED as moot. Any pending request for
21 oral argument in this petition is DENIED in accordance with
22
23
4
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
5