Xing Fu Dong v. Holder

10-1995-ag
Dong v. Holder
BIA
LaForest, IJ
A088 376 087
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 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 ______________________________________
12
13 XING FU DONG,
14 Petitioner,
15
16 v. 10-1995-ag
17 NAC
18 ERIC H. HOLDER, JR.,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Veronica Frösen, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Ada E. Bosque, Senior
27 Litigation Counsel; Paul T.
28 Cygnarowicz, Trial Attorney, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 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.
5 Xing Fu Dong, a native and citizen of the People’s
6 Republic of China, seeks review of a April 21, 2010, order
7 of the BIA affirming the April 15, 2008, decision of
8 Immigration Judge (“IJ”) Brigitte LaForest, which denied
9 Dong’s application for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Xing Fu Dong, No. A088 376 087 (B.I.A. Apr. 21, 2010), aff’g
12 No. A088 376 087 (Immig. Ct. N.Y. City Apr. 15, 2008). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions. See Yun-Zui Guan v.
17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
18 standards of review are well-established. See 8 U.S.C.
19 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167
20 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 104
21 (2d Cir. 2008).
22
2
1 Substantial evidence supports the agency’s adverse
2 credibility determination. See Xiu Xia Lin, 534 F.3d at
3 167. The IJ reasonably relied on inconsistencies between
4 Dong’s asylum application and his testimony regarding: (1)
5 the date he entered the United States; (2) where he was
6 staying at the time family planning officials destroyed his
7 home; and (3) where he was staying when family planning
8 officials were looking for him in 2005. The IJ also
9 reasonably relied on Dong’s non-responsive testimony after
10 questions had been repeated to him and his most comfortable
11 dialect had been verified. See Majidi v. Gonzales, 430 F.3d
12 77, 81 n.1 (2d Cir. 2005) (stating that the Court defers to
13 an IJ’s assessment of demeanor). Dong’s explanations that
14 he was nervous and confused do not compel us to find error
15 in the IJ’s decision. See id. at 80-81 (holding that the
16 agency need not credit an applicant’s explanations for
17 inconsistent testimony unless those explanations would
18 compel a reasonable fact-finder to do so).
19 To the extent Dong argues that the discrepancies in his
20 testimony were not significant, the IJ was entitled to rely
21 on the inconsistencies in assessing the totality of the
22 circumstances, no matter how “minor,” because Dong’s
3
1 application is governed by the Real ID Act. See 8 U.S.C.
2 § 1158(b)(1)(B)(iii). Finally, contrary to Dong’s
3 assertions, the IJ did not have a duty to further develop
4 the record because the burden of establishing eligibility
5 for asylum rested with Dong, see 8 C.F.R. § 208.13(a), and
6 the IJ did attempt to have Dong clarify his inconsistent
7 answers. See Shunfu Li v. Mukasey, 529 F.3d 141, 148 n.5
8 (2d Cir. 2008) (noting that this Court has not held that an
9 IJ has a duty to develop the record other than “to identify
10 and probe perceived inconsistencies”).
11 Given the inconsistencies and the demeanor finding, the
12 IJ’s adverse credibility determination was supported by
13 substantial evidence. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),
14 1252(b)(4)(B). Because Dong’s claims were all based on the
15 same factual predicate, the agency’s adverse credibility
16 determination was a proper basis for denial of his
17 application for asylum, withholding of removal, and CAT
18 relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
19 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
4
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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