Dian-Ying Wang v. Holder , 380 F. App'x 38 ( 2010 )

09-3367-ag
Wang v. Holder
BIA
Abrams, IJ
A098 719 523
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 3 rd day of June, two thousand ten.
PRESENT:
JON O. NEWMAN,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_______________________________________
DIAN-YING WANG,
Petitioner,
v. 09-3367-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Gary J. Yerman, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; James A. Hunolt, Senior
Litigation Counsel; Craig A. Newell,
Jr., Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED in part and DISMISSED in part.
Petitioner Dian-Ying Wang, a native and citizen of the
People’s Republic of China, seeks review of a July 13, 2009
order of the BIA affirming the October 29, 2007 decision of
Immigration Judge (“IJ”) Steven R. Abrams, denying
petitioner’s application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In
re Dian-Ying Wang, No. A098 719 523 (B.I.A. July 13, 2009),
aff’g No. A098 719 523 (Immig. Ct. N.Y. City Oct. 29, 2007).
We assume the parties’ familiarity with the underlying facts
and procedural history of the case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008);
Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
I. Asylum
Substantial evidence supports the IJ’s adverse
credibility determination. First, we afford particular
deference to the IJ’s finding that Wang’s demeanor
undermined his credibility. See Majidi v. Gonzales, 430
F.3d 77, 81 n.1 (2d Cir. 2005).
In addition, Wang’s testimony that the members of his
underground church were forced to relocate constantly to
avoid police detection was contradicted by his later
testimony that his church held meetings at his home for six
months. Wang does not challenge the IJ’s finding, which
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stands as a valid basis for the IJ’s adverse credibility
determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146
(2d Cir. 2008). Moreover, as the IJ found, Wang: (1)
testified implausibly that he did not know his parents’
address or how to find their house, despite testifying that
he had visited them at their home, continued to speak to
them on the phone, and had asked his father to write a
letter for his hearing; (2) testified implausibly that
despite his parents having moved to Fuzhou City, his
father’s letter was sent from Wang’s address in Kemen
Village; and (3) testified inconsistently that his church
only met on Sundays and that the police raids occurred on
Sundays, when the dates Wang provided for the raids were
both Thursdays. Although Wang argues that he adequately
explained these first two discrepancies, a reasonable
factfinder would not have been compelled to credit his
explanations. See Majidi, 430 F.3d at 80-81. Furthermore,
the IJ did not place undue weight on his inconsistent
testimony. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 342 (2d Cir. 2006) (providing that the weight
afforded to an applicant’s evidence in immigration
proceedings lies largely within the discretion of the IJ).
Finally, Wang failed to submit sufficient corroborative
evidence to rehabilitate his testimony. See Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per curiam).
As Wang asserts, the agency erred in finding that he
provided inconsistent testimony regarding where he last
lived in China. Remand would be futile, however, because
the IJ’s broader credibility determination is amply
supported by the record, and we can confidently predict that
the agency would reach the same credibility determination
absent this error. See Xiao Ji Chen, 471 F.3d at 335.
Because we find the IJ’s adverse credibility
determination to be adequately supported, we need not reach
the agency’s alternate burden of proof findings.
II. Withholding of Removal and CAT Relief
To the extent Wang’s petition to this Court challenges
the IJ’s denial of his request for withholding of removal
and CAT relief, we are without jurisdiction to consider
these arguments as he failed to exhaust these claims before
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the BIA. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462
F.3d 113, 119 (2d Cir. 2006). To that extent, therefore, we
dismiss the petition for review.
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part. As we have completed
our review, any stay of removal that the Court previously
granted in this petition is VACATED, and any pending motion
for a stay of removal in this petition is DISMISSED as moot.
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate
Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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