Ze Wang v. Holder , 530 F. App'x 63 ( 2013 )

12-381
Wang v. Holder
BIA
Vomacka, IJ
A200 912 682
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 22nd day of July, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 ZE WANG,
14 Petitioner,
15
16 v. 12-381
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lewis G. Hu, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Cindy S. Ferrier,
27 Assistant Director; Kimberly A.
28 Burdge, Trial Attorney, Office of
29 Immigration Litigation, United
30 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 Ze Wang, a native and citizen of the People’s Republic
6 of China, seeks review of a January 5, 2012, decision of the
7 BIA affirming the February 11, 2011, decision of Immigration
8 Judge (“IJ”) Alan A. Vomacka, which denied his application
9 for asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Ze Wang, No. A200
11 912 682 (B.I.A. Jan. 5, 2012), aff’g No. A200 912 682
12 (Immig. Ct. N.Y. City Feb. 11, 2011). 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 have reviewed
16 the IJ’s decision as modified by the BIA, considering only
17 those grounds for the adverse credibility determination that
18 were affirmed by the BIA. See Xue Hong Yang v. U.S. Dep’t
19 of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
20 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
21 standards of review are well-established. See 8 U.S.C.
22 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d
23 510, 513 (2d Cir. 2009).
2
1 Initially, to the extent that Wang raises a claim of
2 ineffective assistance of counsel, because the claim was not
3 raised before the BIA, it is unexhausted and we lack
4 jurisdiction to consider it. See Garcia-Martinez v. Dep’t
5 of Homeland Sec., 448 F.3d 511, 513-14 (2d Cir. 2006).
6 Accordingly, we address only Wang’s challenges to the
7 adverse credibility determination.
8 For asylum applications, like Wang’s, governed by the
9 amendments made to the Immigration and Nationality Act by
10 the REAL ID Act of 2005, the agency may, considering the
11 totality of the circumstances, base a credibility finding on
12 an asylum applicant’s “demeanor, candor, or responsiveness,”
13 the plausibility of his account, and inconsistencies in his
14 statements, without regard to whether they go “to the heart
15 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
16 see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
17 2008). We “defer to an IJ’s credibility determination
18 unless, from the totality of the circumstances, it is plain
19 that no reasonable fact-finder could make” such a ruling.
20 Xiu Xia Lin, 534 F.3d at 167. We conclude that the agency
21 reasonably based its adverse credibility determination on
22 inconsistencies in the evidence and Wang’s demeanor.
3
1 Because the REAL ID Act permits the agency to base a
2 credibility finding on any inconsistency, the
3 inconsistencies regarding Wang’s detention support the
4 agency’s adverse credibility determination. See id. at 166,
5 167. In the statement in support of his asylum application,
6 Wang indicated that the police interrogated him, beat him,
7 and tortured him with an “electrical charged rod,” all on
8 the first day of detention, and did not indicate that he was
9 further interrogated or beaten during the remainder of his
10 ten-day detention. As the agency noted, Wang’s testimony
11 differed from that statement, in that he testified that he
12 was questioned repeatedly and beaten “every one or two
13 days.” Additionally, the letter Wang submitted from a
14 friend lacked any allegation that the friend was beaten
15 during detention or any reference to Wang’s beating.
16 Moreover, both here and before the BIA, Wang states only
17 that the discrepancies are minor, and provides no
18 explanation for the differences in the statements. See
19 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
20 The adverse credibility determination is further
21 supported by the IJ’s finding, which we afford particular
22 deference, that Wang’s demeanor was evasive and that he
4
1 tended to be misleading in his answers to certain questions.
2 See Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006).
3 Furthermore, while testifying, Wang indicated that he
4 was not honest when he applied for his student visa, in that
5 he submitted documentation showing that he had sufficient
6 funds to pay for school in the United States, when he did
7 not. Wang attempted to explain the dishonesty by stating
8 that an agency prepared the application for him, and he
9 “wanted to provide the truth” but the agency told him he
10 could not. Because the IJ confirmed that at the time Wang
11 submitted the false documentation, he was not fleeing
12 persecution in China, the agency reasonably found that his
13 misrepresentation undermined his overall credibility. See
14 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007). Cf.
15 Rui Ying Lin v. Gonzales, 445 F.3d 127, 133-35 (2d Cir.
16 2006).
17 The agency’s adverse credibility finding was further
18 supported by Wang’s failure to provide reasonably available
19 corroborative evidence regarding his alleged detention in
20 China. Because the IJ had already called Wang’s credibility
21 into question, the agency did not err in relying on the lack
22 of corroboration as further support for the adverse
23 credibility determination. See Biao Yang v. Gonzales, 496
24 F.3d 268, 273 (2d Cir. 2007).
5
1 Given the inconsistencies, prior misrepresentation,
2 demeanor finding, and lack of corroboration, we conclude
3 that the totality of the circumstances supports the agency’s
4 adverse credibility determination. See 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because
6 the only evidence of a threat to Wang’s life or freedom
7 depended upon his credibility, the adverse credibility
8 finding necessarily precludes success on his claims for
9 asylum, withholding of removal, and CAT relief. See Paul v.
10 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang,
11 426 F.3d at 523.
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
6