10-693-ag Ou v. Holder BIA Videla, IJ A200 031 252 

### 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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 18 th** **day of April, two thousand eleven.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 Chief Judge**,** 8 **DEBRA ANN LIVINGSTON,** 9 **DENNY CHIN,** 10 Circuit Judges**.** 11

**______________________________________** 12 13 **DONG OU,** 14 Petitioner**,** 15 16 **v. 10-693-ag** 17 **NAC** 18 **ERIC H. HOLDER, JR.,** 19 **UNITED STATES ATTORNEY GENERAL,** 20 Respondent**.** 21

**______________________________________** 22 23 **FOR PETITIONER: Edward J. Cuccia, New York, New** 24 **York.** 25 26 **FOR RESPONDENT: Tony West, Assistant Attorney** 27 **General; Douglas E. Ginsburg,** 28 **Assistant Director; Judith R.** 29 **O’Sullivan, Trial Attorney, Office** 302 **of Immigration Litigation, United** 1 **States Department of Justice,** 2 **Washington, D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED, that the petition for review 7 is DENIED. 8 Dong Ou, a native and citizen of the People’s Republic 9 of China, seeks review of a January 27, 2010, order of the 10 BIA affirming the March 18, 2008, decision of Immigration 11 Judge (“IJ”) Gabriel C. Videla, denying Ou’s application for 12 asylum, withholding of removal, and relief under the 13 Convention Against Torture (“CAT”). In re Dong OuNo. A200 14 031 252 (B.I.A. Jan. 27, 2010), aff’gNo. A200 031 252 15 (Immig. Ct. N.Y. City Mar. 18, 2008). We assume the 16 parties’ familiarity with the underlying facts and 17 procedural history in this case. 18 Under the circumstances of this case, we review the 19 IJ’s decision including the portions not explicitly 20 discussed by the BIA. Yun-Zui Guan v. Gonzales , 432 F.3d 21 391, 394 (2d Cir. 2005). The applicable standards of review 22 are well-established. See8 U.S.C. § 1252(b)(4)(B); Xiu Xia 23 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); Salimatou 24 Bah v. Mukasey,529 F.3d 99, 104 (2d Cir. 2008). 253 Substantial evidence supports the agency’s adverse 1 credibility determination. See Xiu Xia Lin, 534 F.3d at 2 167. For asylum applications, such as Ou’s, governed by the 3 REAL ID Act of 2005, the agency may, in considering the 4 totality of the circumstances, base a credibility finding on 5 an asylum applicant’s demeanor, the plausibility of his or 6 her account, and inconsistencies in his or her statements, 7 without regard to whether they go “to the heart of the 8 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Here, 9 the IJ found Ou not credible based on: (1) his demeanor and 10 lack of responsiveness to some questions; (2) his 11 implausible testimony that, although family planning 12 officials were looking for him at his parents’ home, he and 13 his wife held a large wedding party there; (3) his claim 14 that he had presented a fine receipt, when, in fact, he had 15 not done so; (4) his omission from his asylum application 16 that his parents had been arrested; and (5) his admission 17 that he had lied to immigration officials about the basis 18 for his asylum claim when he first arrived in the United 19

States. 20 At the outset, Ou challenges only the first four of the 21 agency’s findings. Thus, the agency’s reliance on Ou’s 22 admission that he lied to immigration officials stands as a 234 valid basis for the adverse credibility determination. See 1 Shunfu Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir. 2008); 2 see also Yun-Zui Guan v. Gonzales , 432 F.3d 391, 398 (2d 3 Cir. 2005) (finding it reasonable for the agency to base an 4 adverse credibility determination “on the commonsense 5 observation that it is inconsistent for a petitioner to 6 respond to the same question about the nature of his asylum 7 claim with two entirely different responses”). 8 To the extent Ou challenges the agency’s additional 9 findings, the agency’s findings are supported by substantial 10 evidence. First, we defer to the IJ’s assessment that Ou 11 was likely “following a script” because he was non12 responsive or often hesitated before answering simple, 13 direct questions. See Majidi v. Gonzales , 430 F.3d 77, 81 14 n.1 (2d Cir. 2005) (noting that “[a] fact-finder who 15 assesses testimony together with witness demeanor” is in the 16 best position to evaluate its credibility). Second, the 17 agency reasonably found implausible Ou’s testimony that he 18 held a large wedding party at his parents’ home while hiding 19 from family planning officials who were looking for him 20 there. Cf. Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 21 315, 336 n.16 (2d Cir. 2006) (upholding an implausibility 22 finding as to a petitioner’s claim that she went into hiding 235 to avoid officials and yet continued working in a location 1 where the officials were likely to find her). 2 Third, contrary to Ou’s assertions, the IJ reasonably 3 found him not credible based on his inconsistent testimony 4 that he had submitted a “fine receipt” when he had not done 5 so and, indeed, had also testified that he never paid any 6 fine. See8 U.S.C. § 1158(b)(1)(B)(iii) (noting that 7 credibility findings may be based on inconsistencies in a 8 petitioner’s statements). Finally, the agency reasonably 9 relied on Ou’s omission from his asylum application that his 10 parents had been arrested and reasonably rejected his 11 inconsistent explanations for this omission. See Majidi , 12 430 F.3d at 80-81 (2d Cir. 2005) (providing that the agency 13 need not credit an applicant’s explanations for inconsistent 14 testimony unless those explanations would compel a 15 reasonable fact-finder to do so); see Xiu Xia Lin, 534 F.3d 16 at 166 n.3, 167 (stating that omissions and inconsistencies 17 are functionally equivalent for purposes of an adverse 18 credibility finding). 19 To the extent that all Ou’s claims were based on the 20 same factual predicate, the agency’s adverse credibility 21 determination was a proper basis for denial of his 22 applications for asylum, withholding of removal, and CAT 236 relief. See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C) ; 1 Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006). The 2 agency also reasonably denied Ou’s CAT claim based on his 3 illegal departure from China. See Mu Xiang Lin v. U.S. Dep’t 4 of Justice , 432 F.3d 156, 159-60 (2d Cir. 2005) 5 For the foregoing reasons, the petition for review is 6 DENIED in part and DISMISSED in part. As we have completed 7 our review, any stay of removal that the Court previously 8 granted in this petition is VACATED, and any pending motion 9 for a stay of removal in this petition is DISMISSED as moot. 10 Any pending request for oral argument in this petition is 11 DENIED in accordance with Federal Rule of Appellate 12 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 13

FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15 16 17