Qian Kun Yang v. Holder , 430 F. App'x 61 ( 2011 )

10-2453-ag
Yang v. Holder
BIA
Abrams, IJ
A088 379 562
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 29th day of August, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 Qian Kun Yang, AKA Qiankun Yang,
15 Petitioner,
16
17 v. 10-2453-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Eric Zheng, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Anh-Thu P. Mai-Windle,
28 Senior Litigation Counsel; Imran R.
29 Zaidi, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, 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 Qian Kun Yang, a native and citizen of
6 China, seeks review of a June 11, 2010, order of the BIA
7 affirming the June 30, 2008, decision of Immigration Judge
8 (“IJ”) Steven R. Abrams denying Yang’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Qian Kun Yang,
11 No. A088 379 562 (B.I.A. June 11, 2010), aff’g No. A088 379
12 562 (Immig. Ct. N.Y. City June 30, 2008). 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 the
16 IJ’s decision as supplemented by the BIA’s decision. See
17 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See 8
19 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
20 513 (2d Cir. 2009). Because Yang’s brief fails to
21 meaningfully challenge the agency’s denial of his CAT claim,
22 we address only its denial of asylum and withholding of
2
1 removal. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
2 n.1, 545 n.7 (2d Cir. 2005).
3 Yang argues that his case should be remanded to the
4 agency to determine whether he established his eligibility
5 for asylum based on forced abortions allegedly undergone by
6 his wife. However, in Shi Liang Lin v. U.S. Department of
7 Justice, we held that an applicant is not per se eligible
8 for asylum based on a forcible abortion undergone by his
9 spouse or girlfriend, but might be eligible for asylum if he
10 can demonstrate past persecution based on his own “other
11 resistance” to a coercive population control program. 494
12 F.3d 296, 309-10(2d Cir. 2007) (en banc). The agency found
13 that Yang’s testimony regarding his alleged other resistance
14 to China’s family planning policies was not credible, and
15 that determination is supported by substantial evidence.
16 The agency reasonably relied on inconsistencies between
17 Yang’s testimony and his asylum application regarding when
18 his alleged beating occurred and whether he was present when
19 his wife was taken for her alleged second abortion. Yang’s
20 explanation that these inconsistencies were a result of
21 confusion is not compelling. See Majidi v. Gonzales, 430
22 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than
3
1 offer a plausible explanation for his inconsistent
2 statements to secure relief; he must demonstrate that a
3 reasonable fact-finder would be compelled to credit his
4 testimony.” (emphasis in original; internal quotation marks
5 omitted)). The agency also reasonably noted that Yang’s
6 asylum application contained less detail about the purported
7 incident at the family planning office than his later
8 testimony. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167
9 (2d Cir. 2008) (explaining that under the REAL ID Act the
10 agency may rely on any omission as a basis for its adverse
11 credibility determination and holding that a petitioner’s
12 failure to include the length of her detention in her asylum
13 application was a proper basis for an adverse credibility
14 determination). Finally, the agency reasonably relied on
15 its “common sense and ordinary experience,” Siewe v.
16 Gonzales, 480 F.3d 160, 169 (2d Cir. 2007), in finding that
17 Yang’s testimony that he searched for a job while he was in
18 hiding was implausible. See Xiao Ji Chen v. U.S. Dep’t of
19 Justice, 471 F.3d 315, 336 n.16 (2d Cir. 2006) (upholding an
20 implausibility finding as to a petitioner's claim that she
21 went into hiding to avoid officials and yet continued
22 working).
4
1 Contrary to Yang’s argument, the agency did not require
2 him to produce a warrant to establish his eligibility for
3 relief, but, having found that his testimony was not
4 credible, reasonably expected him to provide corroboration
5 to rehabilitate that testimony. See Biao Yang v. Gonzales,
6 496 F.3d 268, 273 (2d Cir. 2007) (concluding that once an
7 asylum applicant’s testimony has been called into question,
8 an IJ can expect corroboration).
9 Together, the problems the agency identified in Yang’s
10 testimony and his failure to provide sufficient
11 corroboration provide substantial evidence for its adverse
12 credibility determination. See 8 U.S.C.
13 § 1158(b)(1)(B)(iii). Because Yang’s claims for asylum and
14 withholding of removal were based on the same factual
15 predicate, the agency’s adverse credibility determination
16 forecloses both forms of relief. See Paul v. Gonzales, 444
17 F.3d 148, 156 (2d Cir. 2006).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
5
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
6