Dong v. Holder

10-1002-ag
Dong v. Holder
BIA
Schoppert, IJ
A094 915 977
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 19th day of May, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 DENNY CHIN,
11 Circuit Judges.
12 _______________________________________
13
14 SIHAI DONG, ALSO KNOWN AS SHIHAI DONG,
15 SHI HAI DONG,
16 Petitioner,
17
18 v. 10-1002-ag
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONER: Farah Loftus, Law Office of Farah Loftus,
26 Century City, California
27
28 FOR RESPONDENT: Tony West, Assistant Attorney General;
29 Jamie M. Dowd, Senior Litigation Counsel;
1 Sabatino F. Leo, Trial Attorney, Office
2 of Immigration Litigation, Civil
3 Division, U.S. Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner, Sihai Dong, a native and citizen of the
11 People’s Republic of China, seeks review of a March 5, 2010,
12 decision of the BIA affirming the May 14, 2008, decision of
13 Immigration Judge (“IJ”) Douglas B. Schoppert denying his
14 application for asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re Sihai
16 Dong, No. A094 915 977 (B.I.A. March 5, 2010), aff’g No.
17 A094 915 977 (Immig. Ct. N.Y. City May 14, 2008). We assume
18 the parties’ familiarity with the underlying facts and
19 procedural history of the case.
20 Under the circumstances of this case, we review both
21 the IJ’s and the BIA’s opinions “for the sake of
22 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
23 2008). The applicable standards of review are well-
24 established. See Corovic v. Mukasey, 519 F.3d 90, 95 (2d
25 Cir. 2008); Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
2
1 Pursuant to the REAL ID Act which governs this case, an
2 adverse credibility determination may be based on an asylum
3 applicant’s demeanor, the plausibility of his or her
4 account, inconsistencies in his or her statements, the
5 consistency of such statements with other evidence, and any
6 inaccuracies or falsehoods in such statements, without
7 regard to whether they go “to the heart of the applicant’s
8 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
9 The IJ reasonably found Dong not credible because:
10 (1) his testimony that he feared returning to China because
11 of his practice of Falun Gong was inconsistent with his
12 statement to a Border Patrol Officer that he entered the
13 United States only to “seek employment”; and (2) he provided
14 insufficient corroboration to rehabilitate his otherwise
15 incredible testimony. Dong does not challenge either of
16 these findings, which stand as valid bases for the IJ's
17 adverse credibility determination. See Li v. Mukasey, 529
18 F.3d 141, 146-47 (2d Cir. 2008); see also 8 U.S.C. §
19 1158(b)(1)(B)(iii).
20 The IJ also found Dong not credible based on: (1) his
21 inconsistent testimony regarding the date of his detention
22 and the length of time for which he was practicing Falun
23 Gong at the time of his arrest; and (2) his inconsistent
3
1 testimony regarding the requirement that he report to
2 Chinese authorities following his detention. Although Dong
3 argues that these inconsistencies were too minor to support
4 an adverse credibility determination, “an IJ may rely on any
5 inconsistency or omission in making an adverse credibility
6 determination as long as the ‘totality of the circumstances’
7 establishes that an asylum applicant is not credible.” Xiu
8 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)
9 (emphasis in original). Dong further asserts that he
10 testified inconsistently because he was “very nervous” and
11 explains that he did not mention the requirement that he
12 report to the police because he did not believe it was
13 “quite important.” Although Dong provided these possible
14 explanations for his inconsistent testimony, no reasonable
15 factfinder would be compelled to credit these explanations.
16 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
17 Given the inconsistencies among Dong’s statements, the
18 adverse credibility determination is supported by
19 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii).
20 Because the only evidence that Dong would be persecuted or
21 tortured depended on his credibility, the IJ properly denied
22 his applications for asylum, withholding of removal, and CAT
23 relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
4
1 2006).
2 For the foregoing reasons, the petition for review is
3 DENIED. As we have completed our review, any stay of
4 removal that the Court previously granted in this petition
5 is VACATED, and any pending motion for a stay of removal in
6 this petition is DISMISSED as moot. Any pending request for
7 oral argument in this petition is DENIED in accordance with
8 Federal Rule of Appellate Procedure 34(a)(2), and Second
9 Circuit Local Rule 34.1(b).
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
5