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.

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 York, on the 18th 4 day of April, two thousand eleven.

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 DEBRA ANN LIVINGSTON,

10 DENNY CHIN,

11 Circuit Judges.

12 ______________________________________

13

14 DONG OU,

15 Petitioner, 

16

17 v. 10-693-ag

18 NAC 

19 ERIC H. HOLDER, JR., 

20 UNITED STATES ATTORNEY GENERAL,

21 Respondent.

22 ______________________________________

23

24 FOR PETITIONER: Edward J. Cuccia, New York, New

25 York.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Douglas E. Ginsburg,

29 Assistant Director; Judith R.

30 O’Sullivan, Trial Attorney, Office
2

1 of Immigration Litigation, United

2 States Department of Justice,

3 Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED, that the petition for review

8 is DENIED.

9 Dong Ou, a native and citizen of the People’s Republic

10 of China, seeks review of a January 27, 2010, order of the

11 BIA affirming the March 18, 2008, decision of Immigration

12 Judge (“IJ”) Gabriel C. Videla, denying Ou’s application for

13 asylum, withholding of removal, and relief under the

14 Convention Against Torture (“CAT”). In re Dong Ou No. A200

15 031 252 (B.I.A. Jan. 27, 2010), aff’g No. A200 031 252

16 (Immig. Ct. N.Y. City Mar. 18, 2008). We assume the

17 parties’ familiarity with the underlying facts and

18 procedural history in this case.

19 Under the circumstances of this case, we review the

20 IJ’s decision including the portions not explicitly

21 discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d

22 391, 394 (2d Cir. 2005). The applicable standards of review

23 are well-established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia

24 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); Salimatou

25 Bah v. Mukasey, 529 F.3d 99, 104 (2d Cir. 2008).
3

1 Substantial evidence supports the agency’s adverse

2 credibility determination. See Xiu Xia Lin, 534 F.3d at

3 167. For asylum applications, such as Ou’s, governed by the

4 REAL ID Act of 2005, the agency may, in considering the

5 totality of the circumstances, base a credibility finding on

6 an asylum applicant’s demeanor, the plausibility of his or

7 her account, and inconsistencies in his or her statements,

8 without regard to whether they go “to the heart of the

9 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Here,

10 the IJ found Ou not credible based on: (1) his demeanor and

11 lack of responsiveness to some questions; (2) his

12 implausible testimony that, although family planning

13 officials were looking for him at his parents’ home, he and

14 his wife held a large wedding party there; (3) his claim

15 that he had presented a fine receipt, when, in fact, he had

16 not done so; (4) his omission from his asylum application

17 that his parents had been arrested; and (5) his admission

18 that he had lied to immigration officials about the basis

19 for his asylum claim when he first arrived in the United

20 States. 

21 At the outset, Ou challenges only the first four of the

22 agency’s findings. Thus, the agency’s reliance on Ou’s

23 admission that he lied to immigration officials stands as a
4

1 valid basis for the adverse credibility determination. See

2 Shunfu Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir. 2008);

3 see also Yun-Zui Guan v. Gonzales, 432 F.3d 391, 398 (2d

4 Cir. 2005) (finding it reasonable for the agency to base an

5 adverse credibility determination “on the commonsense

6 observation that it is inconsistent for a petitioner to

7 respond to the same question about the nature of his asylum

8 claim with two entirely different responses”).

9 To the extent Ou challenges the agency’s additional

10 findings, the agency’s findings are supported by substantial

11 evidence. First, we defer to the IJ’s assessment that Ou

12 was likely “following a script” because he was non13 responsive or often hesitated before answering simple,

14 direct questions. See Majidi v. Gonzales, 430 F.3d 77, 81

15 n.1 (2d Cir. 2005) (noting that “[a] fact-finder who

16 assesses testimony together with witness demeanor” is in the

17 best position to evaluate its credibility). Second, the

18 agency reasonably found implausible Ou’s testimony that he

19 held a large wedding party at his parents’ home while hiding

20 from family planning officials who were looking for him

21 there. Cf. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

22 315, 336 n.16 (2d Cir. 2006) (upholding an implausibility

23 finding as to a petitioner’s claim that she went into hiding
5

1 to avoid officials and yet continued working in a location

2 where the officials were likely to find her).

3 Third, contrary to Ou’s assertions, the IJ reasonably

4 found him not credible based on his inconsistent testimony

5 that he had submitted a “fine receipt” when he had not done

6 so and, indeed, had also testified that he never paid any

7 fine. See 8 U.S.C. § 1158(b)(1)(B)(iii) (noting that

8 credibility findings may be based on inconsistencies in a

9 petitioner’s statements). Finally, the agency reasonably

10 relied on Ou’s omission from his asylum application that his

11 parents had been arrested and reasonably rejected his

12 inconsistent explanations for this omission. See Majidi,

13 430 F.3d at 80-81 (2d Cir. 2005) (providing that the agency

14 need not credit an applicant’s explanations for inconsistent

15 testimony unless those explanations would compel a

16 reasonable fact-finder to do so); see Xiu Xia Lin, 534 F.3d

17 at 166 n.3, 167 (stating that omissions and inconsistencies

18 are functionally equivalent for purposes of an adverse

19 credibility finding).

20 To the extent that all Ou’s claims were based on the

21 same factual predicate, the agency’s adverse credibility

22 determination was a proper basis for denial of his

23 applications for asylum, withholding of removal, and CAT
6

1 relief. See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);

2 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). The

3 agency also reasonably denied Ou’s CAT claim based on his

4 illegal departure from China. See Mu Xiang Lin v. U.S. Dep’t

5 of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005)

6 For the foregoing reasons, the petition for review is

7 DENIED in part and DISMISSED in part. As we have completed

8 our review, any stay of removal that the Court previously

9 granted in this petition is VACATED, and any pending motion

10 for a stay of removal in this petition is DISMISSED as moot.

11 Any pending request for oral argument in this petition is

12 DENIED in accordance with Federal Rule of Appellate

13 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk

16

17