Songjie Cui-Run v. Holder , 486 F. App'x 941 ( 2012 )

11-3940
Cui-Run v. Holder
BIA
Morace, IJ
A087 434 445
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 25th day of July, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROBERT D. SACK,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 SONGJIE CUI-RUN,
15 Petitioner,
16
17 v. 11-3940
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: David A. Bredin, New York, N.Y.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Mary Jane Candaux,
28 Assistant Director; Ashley Y. Martin,
29 Trial Attorney; Katelin Buell, Law
30 Clerk; Office of Immigration
31 Litigation, United States Department of
32 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 is
4 DENIED.
5 Petitioner Songjie Cui-Run, a native and citizen of the
6 People’s Republic of China, seeks review of a September 1,
7 2011, decision of the BIA affirming the June 18, 2010,
8 decision of an Immigration Judge (“IJ”) denying his
9 application for asylum, withholding of removal and relief
10 under the Convention Against Torture (“CAT”). In re Songjie
11 Cui-Run, No. A087 434 445 (B.I.A. Sept. 1, 2011), aff’g No.
12 A087 434 445 (Immig. Ct. N.Y. City June 18, 2010). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history of the case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as the final agency determination. See
17 Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The
18 applicable standards of review are well established. See
19 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534
20 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
21 For asylum applications, like Cui-Run’s, governed by the
22 REAL ID Act, the agency may, considering the totality of the
2
1 circumstances, base a credibility finding on an asylum
2 applicant’s demeanor, the plausibility of his account, and
3 inconsistencies in his statements without regard to whether
4 they go “to the heart of the applicant’s claim.” 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
6 Substantial evidence supports the agency’s determination
7 that Cui-Run did not testify credibly regarding his claim that
8 he was persecuted in China on the basis of his Christian
9 faith. The IJ reasonably relied on the implausibility of Cui-
10 Run’s testimony, see 8 U.S.C. § 1158(b)(1)(B)(iii), and the
11 IJ’s reasoning was “tethered to record evidence,” Wengsheng
12 Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007). The IJ
13 reasonably determined that: it was implausible that Cui-Run
14 would not be able to recall the day of the week on which his
15 father was arrested while hosting a Christian worship meeting
16 in his home, particularly because Cui-Run testified that their
17 worship group gathered only on Sundays and Wednesdays to
18 worship; and that Cui-Run could not recall the name of the
19 relative whose household register he submitted in support of
20 his claim, particularly in light of Cui-Run’s testimony that
21 he transferred his registration to the other household in
22 order to work. Because the IJ’s implausibility findings are
3
1 based on record facts, and because “there is nothing else in
2 the record from which a firm conviction of error could
3 properly be derived,” id., the inherent implausibility of Cui-
4 Run’s testimony provides substantial support for the agency’s
5 adverse credibility determination, see 8 U.S.C.
6 § 1158(b)(1)(B)(iii) (providing that the agency may base a
7 credibility determination on “the plausibility of the
8 applicant’s . . . account”).
9 Further, in finding Cui-Run not credible, the IJ
10 reasonably relied in part on his demeanor, noting that Cui-
11 Run’s testimony was vague, hesitant and lacking in detail.
12 Because the IJ was in the best position to observe Cui-Run’s
13 manner while testifying, we afford this demeanor finding
14 particular deference. See Zhou Yun Zhang v. INS, 386 F.3d 66,
15 73-74 (2d Cir. 2004), overruled on other grounds by Shi Liang
16 Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007) (en
17 banc).
18 Further, having questioned Cui-Run’s credibility, the IJ
19 reasonably relied on his failure to provide corroborating
20 evidence to support his claim that he had been persecuted in
21 China. An applicant’s failure to corroborate testimony may
22 bear on credibility, either because the absence of particular
4
1 corroborating evidence is viewed as suspicious, or because the
2 absence of corroboration in general makes an applicant unable
3 to rehabilitate testimony that has already been called into
4 question. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
5 Cir. 2007) (per curiam). Thus, the agency reasonably
6 concluded that, in light of Cui-Run’s lack of credibility, his
7 failure to offer evidence supporting his claim that he was
8 persecuted in China adversely affected his credibility.
9 Further, the IJ’s decision to decline to allow Reverend Kim’s
10 testimony is entitled to particular deference. See Xiao Ji
11 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
12 2006).
13 We lack jurisdiction to consider Cui-Run’s argument that
14 the BIA erred in affirming the IJ’s decision without opinion.
15 See Kambolli v. Gonzales, 449 F.3d 454, 463 (2d Cir. 2006).
16 Further, because he failed to challenge the IJ’s denial of his
17 request for CAT relief in his brief to the BIA, we lack
18 jurisdiction to consider his argument that the IJ did not
19 consider all of the evidence in support of his CAT claim. See
20 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119
21 (2d Cir. 2006) (citing Beharry v. Ashcroft, 329 F.3d 51, 59
22 (2d Cir. 2003)).
23
5
1 In light of the inherent implausibility of Cui-Run’s
2 testimony and his failure to corroborate his claims, and in
3 light of the Court’s deference to the agency’s findings
4 regarding demeanor, the agency’s adverse credibility
5 determination regarding Cui-Run’s claim that he suffered past
6 persecution in China was supported by substantial evidence.
7 See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534
8 F.3d at 167 (explaining that this Court “defer[s] to an IJ’s
9 credibility determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make such an adverse credibility ruling”). Accordingly,
12 the agency did not err in denying Cui-Run’s application for
13 asylum and withholding of removal.
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of removal
16 that the Court previously granted in this petition is VACATED,
17 and any pending motion for a stay of removal in this petition
18 is DISMISSED as moot. Any pending request for oral argument in
19 this petition is DENIED in accordance with Federal Rule of
20 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
21 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
6