Document Info

DocketNumber: 10-3844-ag

Citation Numbers: 469 F. App'x 6

Judges: Newman, Pooler, Chin

Filed Date: 4/24/2012

Status: Non-Precedential

Modified Date: 11/5/2024

  •          10-3844-ag
    Pei v. Holder
    BIA
    Abrams, IJ
    A099 037 679
    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 24th day of April, two thousand Twelve.
    5
    6       PRESENT:
    7                JON O. NEWMAN,
    8                ROSEMARY S. POOLER,
    9                DENNY CHIN,
    10                     Circuit Judges.
    11       _______________________________________
    12
    13       YINGZI PEI,
    14                Petitioner,
    15
    16                       v.                                     10-3844-ag
    17                                                              NAC
    18       ERIC H. HOLDER, JR., UNITED STATES
    19       ATTORNEY GENERAL,
    20                Respondent.
    21       ______________________________________
    22
    23       FOR PETITIONER:               Jed S. Wasserman, New York, NY
    24
    25       FOR RESPONDENT:               Tony West, Assistant Attorney
    26                                     General; Christopher C. Fuller,
    27                                     Senior Litigation Counsel; Glen T.
    28                                     Jaeger, Trial Attorney, Office of
    29                                     Immigration Litigation, U.S.
    30                                     Department of Justice, Washington
    
    31 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       Yingzi Pei, a native and citizen of the People’s
    6   Republic of China, seeks review of the September 8, 2010,
    7   order of the BIA affirming the February 27, 2009, decision
    8   of Immigration Judge (“IJ”) Steven R. Abrams denying her
    9   application for asylum, withholding of removal, and relief
    10   under the Convention Against Torture (“CAT”).   In re Yingzi
    11   Pei, No. A099 037 679 (B.I.A. Sept. 8, 2010), aff’g No. A099
    12   037 679 (Immig. Ct. N.Y. City Feb. 27, 2009).   We assume the
    13   parties’ familiarity with the underlying facts and
    14   procedural history in this case.
    15       Under the circumstances of this case, we review both
    16   the BIA’s and IJ’s opinions.   See Yun-Zui Guan v. Gonzales,
    17   
    432 F.3d 391
    , 394 (2d Cir. 2005)(per curiam).   The
    18   applicable standards of review are well-established.   See 8
    
    19 U.S.C. § 1252
    (b)(4)(B); Xiu Xia Lin v. Mukasey, 
    534 F.3d 20
       162, 165-66 (2d Cir. 2008) (per curiam).
    21       The agency’s adverse credibility determination is based
    22   on substantial evidence given inconsistencies among Pei’s
    23   testimony, written application, and record evidence.   See
    2
    1   
    8 U.S.C. § 1158
    (b)(1)(B)(iii); see also Xiu Xia Lin, 534
    2   F.3d at 167.   For example, although Pei testified that she
    3   was arrested in China in 2005 and fled that country for the
    4   United States in 2007, the record contains an application
    5   for adjustment of status that was signed by Pei in July
    6   2005, and indicated that she arrived in the United States in
    7   1999.   Pei further testified inconsistently regarding
    8   whether and when she took birth control pills prescribed by
    9   family planning officials.   Pei also omitted from her asylum
    10   application her assertion at her hearing that she had been
    11   beaten in China for her church attendance.     See Xiu Xia Lin,
    12   534 F.3d at 164, 166 n.3 (recognizing that “[a]n
    13   inconsistency and an omission are, for [credibility]
    14   purposes, functionally equivalent”).   Moreover, a reasonable
    15   fact finder would not be compelled to credit Pei’s
    16   explanations for these inconsistencies.   See Majidi v.
    17   Gonzales, 
    430 F.3d 77
    , 80-81 (2d Cir. 2005).
    18       Given these inconsistencies, the agency’s adverse
    19   credibility determination is supported by substantial
    20   evidence, 
    8 U.S.C. § 1158
    (b)(1)(B)(iii); Xiu Xia Lin, 534
    21   F.3d at 167, and provided an adequate basis for denying
    22   Pei’s application for asylum, withholding of removal, and
    23   CAT relief, see Paul v. Gonzales, 
    444 F.3d 148
    , 155-57 (2d
    3
    1   Cir. 2006) (noting that when the same factual assertions are
    2   needed for asylum, withholding of removal, and CAT relief,
    3   an adverse credibility finding regarding those assertions
    4   forecloses all forms of relief).
    5       Although Pei argues that she established her
    6   eligibility for CAT relief based on her illegal departure,
    7   as the government notes, she did not raise this argument
    8   before the agency and it is thus unexhausted.       Accordingly,
    9   we decline to consider this issue.       See Lin Zhong v. U.S.
    10   Dep’t of Justice, 
    480 F.3d 104
    , 119-20 (2d Cir. 2007).
    11       For the foregoing reasons, the petition for review is
    12   DENIED.    As we have completed our review, any stay of
    13   removal that the Court previously granted with respect to
    14   this petition is VACATED, and any pending motion for a stay
    15   of removal is DENIED as moot.       Any pending request for oral
    16   argument is DENIED in accordance with Federal Rule of
    17   Appellate Procedure 34(a)(2), and Second Circuit Local Rule
    18   34.1(b).
    19                                FOR THE COURT:
    20                                Catherine O’Hagan Wolfe, Clerk
    21
    22
    4