Xiu Zhen Yang v. Holder

10-4628-ag
Yang v. Holder
BIA
Laforest, IJ
A088 335 910
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 New
4 York, on the 27th day of April, two thousand twelve.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 REENA RAGGI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _________________________________________
12
13 XIU ZHEN YANG, AKA TARIMOTO MASHIKO,
14 Petitioner,
15
16 v. 10-4628-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, Esq., New York,
24 N.Y.
2526 FOR RESPONDENT: Tony West, Assistant Attorney General;
27 Blair T. O’Connor, Assistant Director;
28 Remi Da Rocha-Afodu, Trial Attorney;
29 Office of Immigration Litigation,
30 United 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 Petitioner Xiu Zhen Yang, a native and citizen of the
6 People’s Republic of China, seeks review of an October 12,
7 2010 decision of the BIA affirming the December 15, 2008
8 decision of Immigration Judge (“IJ”) Brigitte Laforest denying
9 her application for asylum, withholding of removal, and
10 protection under the Convention Against Torture (“CAT”). In
11 re Xiu Zhen Yang, No. A088 335 910 (B.I.A. Oct. 12, 2010),
12 aff’g No. A088 335 910 (Immig. Ct. N.Y.C. Dec. 15, 2008). We
13 assume the parties’ familiarity with the underlying facts and
14 procedural history of the case.
15 Under the circumstances of this case, we review both the
16 BIA’s and the IJ’s opinions. See Yun-Zui Guan v. Gonzales,
17 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards of
18 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
19 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
20 Because Yang filed her asylum application in 2008, the
21 REAL ID Act applies in this case. See REAL ID Act of 2005,
22 Div. B of Pub. L. No. 109-13, 119 Stat. 231 (2005); Chuilu Liu
2
1 v. Holder, 575 F.3d 193, 197 n.1 (2d Cir. 2009). For asylum
2 applications governed by the REAL ID Act, the agency may,
3 considering the totality of the circumstances, base a
4 credibility finding on an asylum applicant’s demeanor, the
5 plausibility of her account, and inconsistencies in her or her
6 witness’s statements, without regard to whether they go “to
7 the heart of the applicant’s claim.” 8 U.S.C.
8 § 1158(b)(1)(B)(iii); accord Xiu Xia Lin, 534 F.3d at 163-64.
9 Substantial evidence supports the agency’s determination
10 that Yang did not testify credibly regarding her claim that
11 she had been persecuted in China. The agency reasonably
12 relied on inconsistencies in the record. See 8 U.S.C.
13 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-
14 64, 166-68. Yang’s testimony and statement were inconsistent
15 with her mother’s letter regarding the cause and timing of her
16 father’s mental breakdown. The agency reasonably declined to
17 credit her explanation for that inconsistency—that her mother
18 was not highly educated—because the letter attributes the
19 cause of Yang’s father’s mental health problems to an
20 event—his wife’s forced sterilization—distinct from the
21 beating and detention that Yang claims to have caused her
22 father’s mental breakdown almost a decade later. Although
3
1 Yang argues that her mother’s letter can be construed to
2 comport with Yang’s testimony, Yang was required “to do more
3 than offer a ‘plausible’ alternative theory.” Wu Biao Chen v.
4 INS, 344 F.3d 272, 275 (2d Cir. 2003); see also Majidi v.
5 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (finding that
6 agency need not credit applicant’s explanations unless those
7 explanations would compel reasonable fact-finder to do so).
8 Yang also argues that the agency erred in relying on her
9 testimony regarding her parents’ fake divorce and her father’s
10 subsequent fake marriage to undermine the credibility of her
11 mother’s letter and of her own testimony. The IJ’s decision
12 to give limited weight to this letter is entitled to
13 deference, see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
14 315, 342 (2d Cir. 2006), and we conclude that the IJ
15 reasonably attributed the mother’s lack of credibility to Yang
16 as Yang submitted the letter to support her application. See
17 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (relying
18 on the maxim of falsus in uno, falsus in omnibus (false in one
19 thing, false in everything) to hold that once single document
20 is shown to be false, IJ is “free to deem suspect other
21 documents (and to disbelieve other testimony) that depend for
22 probative weight upon [applicant’s] veracity”).
4
1 Similarly, the agency did not err in giving limited
2 weight to the certificates of hospitalization for Yang’s
3 father. This conclusion, which is entitled to deference, see
4 Xiao Ji Chen, 471 F.3d at 342, was reasonable, given that the
5 certificates neither were contemporaneous with the alleged
6 hospitalizations nor reflected any actual diagnoses or
7 treatment.
8 Contrary to Yang’s arguments, having questioned Yang’s
9 credibility, the IJ reasonably relied further on her failure
10 to provide corroborating evidence to support her claims of
11 both past persecution and a fear of future persecution in
12 China. An applicant’s failure to corroborate testimony may
13 bear on credibility either because the absence of particular
14 corroborating evidence is viewed as suspicious, or because the
15 absence of corroboration in general prevents an applicant from
16 rehabilitating testimony that has already been called into
17 question. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
18 Cir. 2007). Here, the agency reasonably concluded that, in
19 light of the inconsistencies in the record, Yang’s failure to
20 offer corroborating evidence further undermined her
21 credibility.
22
5
1 Ultimately, given these findings, the IJ’s adverse
2 credibility determination was supported by substantial
3 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
4 F.3d at 163-64. Accordingly, the agency did not err in
5 denying her applications for asylum, withholding of removal,
6 and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
7 Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument in
13 this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
6