Yin He v. Eric Holder, Jr.

Case: 11-60117 Document: 00511660230 Page: 1 Date Filed: 11/09/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 9, 2011
No. 11-60117
Summary Calendar Lyle W. Cayce
Clerk
YIN QING HE,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 726 763
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Yin Qing He (He), a citizen and native of the People’s Republic of China,
petitions this court for review of the Board of Immigration Appeals’ (BIA) order
dismissing his appeal from the immigration judge’s (IJ) order denying his
application for asylum, withholding of removal, and withholding of removal
under the Convention Against Torture (CAT) and final order of removal. We
review the order of the BIA, and we review the order of the IJ only to the extent
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-60117
that it impacted the BIA’s decision. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.
1997).
He argues that the totality of the circumstances does not support the
adverse credibility finding made by the IJ and the BIA because the
inconsistencies found by the IJ and BIA were minor or unsupported by the
record. He specifically challenges the discrepancies found by the IJ and BIA
regarding the number of friends that accompanied him to the family planning
office to protest the alleged forced abortion performed on his wife and the date
on which he learned that an abortion had been performed. He further
challenges the finding that his testimony regarding the time line of events on
October 17, 2006, was implausible, and the IJ’s and BIA’s reliance on the claim
of Fujian Province that no forced abortions had been performed there in the past
10 years. He argues that without the adverse credibility finding, he established
past persecution and a well founded fear of persecution sufficient for the
granting of relief from removal.
The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005),
amended the standards for assessing credibility and applies to applications, like
He’s, filed after May 11, 2005, the Act’s effective date. Wang v. Holder, 569 F.3d
531, 537 (5th Cir. 2009). Under the new standards, the BIA or “an IJ may rely
on any inconsistency or omission in making an adverse credibility determination
as long as the totality of the circumstances establishes that an asylum applicant
is not credible.” Id. at 538-39 (internal quotation marks omitted) (adopting and
quoting Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)). “We defer
therefore to an IJ’s credibility determination unless, from the totality of the
circumstances, it is plain that no reasonable fact-finder could make such an
adverse credibility ruling.” Id. at 538 (internal quotation marks and citation
omitted).
He’s contention that the discrepancy regarding the number of friends who
accompanied him to the family planning office was minor is without merit as the
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No. 11-60117
IJ and BIA were entitled to rely on any inconsistency, whether major or minor,
in making their credibility determinations. See id. at 538-39. We must defer to
the determination of the IJ and BIA that He’s testimony was inconsistent
regarding the number of friends who accompanied him to the family planning
office and the date on which he learned that an abortion was performed on his
wife because the evidence in the record does not compel a finding to the contrary.
See id. at 537. Likewise, we must defer to the factual finding of the IJ and BIA
that He’s testimony regarding the time line of events on October 17, 2006, was
implausible because the evidence does not compel a contrary finding. See id.
Based upon the two inconsistencies and one implausibility found by the IJ
and BIA that are supported by the record, as well as other inconsistencies in the
record such as He testifying that he was an only child and then testifying that
he had a younger sister, the totality of the circumstances do not compel a finding
that He was credible, and we must, therefore, accept the credibility
determination of the IJ and BIA. See id. at 538-39. As He has not shown that
he produced credible evidence of past persecution or a well founded fear of future
persecution, he has not shown that he was entitled to asylum. See Zhang v.
Gonzales, 432 F.3d 339, 345 (5th Cir. 2005). As He cannot meet the
requirements for asylum, he cannot meet the more stringent requirements for
withholding of removal. See Eduard v. Ashcroft, 379 F.3d 182, 186 n.2 (5th Cir.
2004). As He has not challenged the IJ’s and BIA’s denial of his request for
withholding of removal under the CAT, any such challenge is abandoned. See
Rodriguez v. INS, 9 F.3d 408, 414 n.15 (5th Cir. 1993).
PETITION FOR REVIEW DENIED.
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