Zu Ying Li v. Holder , 374 F. App'x 106 ( 2010 )

09-3061-ag
Li v. Holder
BIA
Mulligan, IJ
A097 452 013
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 29 th day of March, two thousand ten.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 ZU YING LI,
14 Petitioner,
15
16 v. 09-3061-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Henry Zhang, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, Civil Division; Cindy S.
27 Ferrier, Senior Litigation Counsel;
28 Nairi M. Simonian, 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 Zu Ying Li, a native and citizen of the People’s
6 Republic of China, seeks review of a June 18, 2009, order of
7 the BIA, affirming the September 6, 2007, decision of
8 Immigration Judge (“IJ”) Thomas Mulligan that denied his
9 application for withholding of removal and relief under the
10 Convention Against Torture (“CAT”). In re Zu Ying Li,
11 a.k.a. Li Zuying, No. A097 452 013 (B.I.A. June 18, 2009),
12 aff’g No. A097 452 013 (Immig. Ct. N.Y. City Sept. 6, 2007).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we review both
16 the BIA’s and the IJ’s decisions. See Chen v. Gonzales, 417
17 F.3d 268, 271 (2d Cir. 2005). The applicable standards of
18 review are well-established. See 8 U.S.C.
19 § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90,
20 95 (2d Cir. 2008).
21 Substantial evidence supports the agency’s adverse
22 credibility determination. See id. at 95. That
2
1 determination was based on: (1) Li’s demeanor; (2)
2 inconsistencies between Li’s testimony and the documents in
3 the record regarding the date on which he was allegedly
4 divorced from his wife; (3) inconsistencies between Li’s
5 testimony and an affidavit purportedly from his ex-wife
6 regarding the number of times they were fined for their
7 violation of the family planning policy and the amount of
8 those fines; and (4) a lack of record support for Li’s
9 assertion that the Chinese government continues to look for
10 him. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.
11 2003), superseded by statute, Section 101(a)(3) of the REAL
12 ID Act, 8 U.S.C. § 1158(b)(1)(B)(iii), as recognized in Xiu
13 Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d. Cir. 2008). The
14 agency did not err in declining to credit the explanations
15 Li offered for these discrepancies. See Majidi v. Gonzales,
16 430 F.3d 77, 81 (2d. Cir. 2005).
17 Because the only evidence of a threat to Li’s life or
18 freedom depended on his credibility, the agency’s adverse
19 credibility determination was fatal to his application for
20 withholding of removal and CAT relief. See Paul v.
21 Gonzales, 444 F.3d 148, 156 - 57 (2d Cir. 2006). Having
22 found no error in the agency’s credibility determination, we
3
1 need not reach its alternative burden of proof finding.
2 For the foregoing reasons, the petition for review is
3 DENIED. As we have completed our review, any stay of
4 removal that the Court previously granted in this petition
5 is VACATED, and any pending motion for a stay of removal in
6 this petition is DISMISSED as moot. Any pending request for
7 oral argument in this petition is DENIED in accordance with
8 Federal Rule of Appellate Procedure 34(a)(2), and Second
9 Circuit Local Rule 34.1(b).
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
13
4