Yuan Zhi Chen v. Holder

09-2891-ag
Chen v. Holder
BIA
Gordon-Uruakpa, IJ
A094 816 786
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 January, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JOSEPH M. McLAUGHLIN,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 ______________________________________
13
14 YUAN ZHI CHEN,
15 Petitioner,
16
17 v. 09-2891-ag
18 NAC
19 ERIC H. HOLDER, JR.,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23 FOR PETITIONER: Norman Kwai Wing Wong, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; David V. Bernal, Assistant
28 Director; Ana T. Zablah-Monroe,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 in part and DISMISSED in part.
5 Yuan Zhi Chen, a native and citizen of the People’s
6 Republic of China, seeks review of a June 16, 2009 order of
7 the BIA affirming the September 10, 2007 decision of
8 Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa, which
9 denied Chen’s application for asylum as untimely, and
10 rejected his withholding of removal and Convention Against
11 Torture (“CAT”) claims on the merits. In re Yuan Zhi Chen
12 No. A094 816 786 (BIA June 16, 2009), aff’g No. A094 816 786
13 (Immig. Ct. N.Y. City Sept. 10, 2007). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 Under the circumstances of this case, we review the
17 IJ’s decision including the portions not explicitly
18 discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d
19 391, 394 (2d Cir. 2005). The applicable standards of review
20 are established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
21 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); Salimatou Bah
22 v. Mukasey, 529 F.3d 99, 104 (2d Cir. 2008).
2
1 As a preliminary matter, we do not have jurisdiction
2 over petitioner’s claim that the agency erred in
3 pretermitting his asylum application as untimely. See
4 8 U.S.C. § 1158(a)(3). Although we retain jurisdiction to
5 review Constitutional claims and questions of law, see
6 8 U.S.C. § 1252(a)(2)(D), petitioner has raised no such
7 claims. See Saloum v. USCIS, 437 F.3d 238 (2d Cir. 2006)
8 (stating that a petitioner may not create the jurisdiction
9 that Congress chose to remove simply by cloaking an abuse of
10 discretion argument in constitutional garb); Xiao Ji Chen v.
11 U.S. Dep’t of Justice, 471 F.3d 315, 328-29 (2d Cir. 2006)
12 (stating that a question of law is not implicated “when the
13 petition for review essentially disputes the correctness of
14 the IJ’s fact-finding or the wisdom of his exercise of
15 discretion”). We dismiss the petition for review to that
16 extent.
17 With respect to petitioner’s claim for withholding of
18 removal, substantial evidence supports the agency’s adverse
19 credibility determination. See Xiu Xia Lin, 534 F.3d at20 167. Under the REAL ID Act, which applies to petitioner’s
21 application for relief, “an IJ may rely on any inconsistency
22 or omission in making an adverse credibility determination
23 as long as the ‘totality of the circumstances’ establishes
3
1 that an asylum applicant is not credible.” Id. Here, the
2 IJ reasonably relied on petitioner’s omission from his
3 asylum application of any claim that he was detained and
4 lost his job on account of his resistance to China’s family
5 planning policy. Although petitioner argues that he failed
6 to include this information in his application because it
7 was not legally relevant until after we issued our decision
8 in Shi Liang Lin v. U.S. Department of Justice, 494 F.3d 2969 (2d Cir. 2007), no reasonable fact finder would be compelled
10 to credit that explanation. See Majidi v. Gonzales, 430
11 F.3d 77, 80-81 (2d Cir. 2005). Indeed, the IJ reasonably
12 surmised that petitioner had augmented his earlier claim in
13 order to tailor it to fit the change in law. See Cheng Tong
14 Wang v. Gonzales, 449 F.3d 451, 453 (2d Cir. 2006) (finding
15 that the applicant’s omission of his wife’s forced
16 sterilization was material to the applicant’s claim
17 irrespective of the fact that it occurred at a time when
18 that sterilization would not have been, on its own,
19 sufficient to establish asylum eligibility, because the
20 basis for the applicant’s original asylum claim was his
21 opposition to China’s family planning program).
22 Accordingly, the IJ’s adverse credibility determination was
23 supported by substantial evidence. See 8 U.S.C.
4
1 §§ 1158(b)(1)(B)(iii), 1252(b)(4)(B).
2 To the extent petitioner’s withholding of removal and
3 CAT claims were based on the same factual predicate, the
4 agency’s denial of CAT relief was proper. See Paul v.
5 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Insofar as
6 petitioner’s CAT claim was based on his alleged illegal
7 departure, it is well-settled that the agency does not err
8 in finding that a petitioner is not “entitled to CAT
9 protection based solely on the fact that he is part of the
10 large class of persons who have illegally departed China.”
11 See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160
12 (2d Cir. 2005).
13 For the foregoing reasons, the petition for review is
14 DENIED in part and DISMISSED in part. As we have completed
15 our review, any stay of removal that the Court previously
16 granted in this petition is VACATED, and any pending motion
17 for a stay of removal in this petition is DISMISSED as moot.
18 Any pending request for oral argument in this petition is
19 DENIED in accordance with Federal Rule of Appellate
20 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
21
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
25
26 By:___________________________
5