11-532-ag

Yang v. Holder

BIA

Elstein, IJ

A099 670 256

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

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of New

York, on the 24th day of January, two thousand twelve.

PRESENT:

JON O. NEWMAN,

ROBERT A. KATZMANN,

SUSAN L. CARNEY,

 Circuit Judges. 

_______________________________________

ZHONG CHI YANG,

Petitioner, 

 v. 11-532-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

______________________________________

FOR PETITIONER: H. Raymond Fasano, Youman, Madeo &

Fasano, LLP, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney General;

Luis E. Perez, Senior Litigation

Counsel; Claire L. Workman, Trial
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Attorney, Office of Immigration

Litigation, Civil Division, United

States Department of Justice,

Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

Petitioner Zhong Chi Yang, a native and citizen of China,

seeks review of a January 10, 2011, order of the BIA affirming

the June 12, 2009, decision of Immigration Judge (“IJ”)

Annette S. Elstein denying Yang’s application for relief under

the Convention Against Torture (“CAT”). In re Zhong Chi Yang,

No. A099 670 256 (B.I.A. Jan. 10, 2011), aff’g No. A099 670

256 (Immig. Ct. N.Y. City June 12, 2009). We assume the

parties’ familiarity with the underlying facts and procedural

history in this case.

Under the circumstances of this case, we have reviewed

the decision of the IJ as supplemented by the BIA. See Yan

Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

applicable standards of review are well-established. See 

8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

513 (2d Cir. 2009). 
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Substantial evidence supports the agency’s adverse

credibility determination. Under the REAL ID Act, which

applies to Yang’s application for relief, “an IJ may rely on

any inconsistency or omission in making an adverse credibility

determination as long as the ‘totality of the circumstances’

establishes that an asylum applicant is not credible.” Xiu

Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (emphasis

in original).

As the IJ found, Yang made inconsistent statements to a

Customs and Border Protection (“CBP”) officer and during his

testimony before the IJ regarding the amount he paid to a

snakehead to be smuggled into the United States, and conceded

that he lied to the officer about a Falun Gong asylum claim.

While Yang argues that the IJ erred in relying on the CBP

officer’s notes as they may not have been accurate, he did not

present this argument to the agency. See Lin Zhong v. U.S.

Dep’t of Justice, 480 F.3d 104, 107 n.1, 122 (2d Cir.

2007)(reaffirming that this Court “may consider only those

issues that formed the basis for [the BIA’s] decision”).

Yang further argues that the agency should have

considered that he made these statements to the CBP officer

under duress from the snakehead. However, we defer to the
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agency’s rejection of that explanation, as it confirms that he

did initially lie and does not compel the conclusion that he

would not do so again. See Majidi v. Gonzales, 430 F.3d 77,

81 (2d Cir. 2005) (providing that this Court must defer to the

fact-finder’s conclusions about explanations for

inconsistencies in an applicant’s testimony unless the

applicant “demonstrate[s] that a reasonable fact-finder would

be compelled to credit his testimony”) (emphasis in original;

quotation omitted)). Moreover, as the IJ found, Yang also

made inconsistent statements concerning to whom he owed money

and Yang does not challenge this finding. Together these

inconsistencies provide substantial evidence in support of the

agency’s adverse credibility determination.

This adverse credibility determination supports the

agency’s rejection of Yang’s claim that he would be tortured

because of his illegal departure from China and failure to pay

debts as Yang did not credibly establish the factual

predicate, that he illegally left China after borrowing

substantial sums of money, for the claim. See Shou Yung Guo

v. Gonzales, 463 F.3d 109, 113-14 (2d Cir. 2006).

Additionally, Yang’s argument for CAT relief due to fear of

forced sterilization is meritless because, as the agency
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found, his fear is speculative, as he is not engaged or

married, and has no children. See Jian Xing Huang v. INS, 421

F.3d 125, 129 (2d Cir. 2005) (per curiam) (holding that,

absent solid support in the record for the petitioner’s

assertion that he would be subjected to persecution in China

because of his desire to have more children, his fear was

“speculative at best”).

Finally, we reject Yang’s argument that the BIA and the

IJ erred by requiring Yang to prove that he would be “singled

out” for torture in order to qualify for CAT relief. The

record demonstrates that, contrary to Yang’s assertions, the

agency applied the proper standard, requiring Yang to provide

evidence that petitioners in his particular circumstances were

“more likely than not to be tortured.” Lin v. U.S. Dep’t of

Justice, 432 F.3d 156, 160 (2d Cir. 2005). Substantial

evidence supports the agency’s determination that Yang has

failed to meet this burden. See id. At 159-60.

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot. Any pending request for oral argument
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in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk