09 -0467 -ag

Wu-Fan v. Holder BIA Schopper t, IJ A099 539 112 

### UNITED STATES COURT OF AP PEALS FOR THE SE COND CIRCU IT 

# SUM MARY ORDER

RULIN G S B Y SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRI E F O R O T H E R PA PER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDI X OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN E L E C T RON IC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHO UT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED. 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 1 day of December, two thousand nine. st 5 6 PRESENT: 7 ROGER J. MINER, 8 JOSÉ A. CABRANES, 9 ROBERT D. SACK, 10 Circuit Judges . 11

_______________________________________ 12 13 LIMING WU-FAN, 14 Petitioner , 15 16 v. 09-0467-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent . 21

_______________________________________ 22 23 24 252 1 FOR PETITIONER: Dehai Zhang, Flushing, NY. 2 3 FOR RESPONDENT: Tony West, Assistant Attorney 4 General; Emily Anne Radford, 5 Assistant Director; Jesse Lloyd 6 Busen, Trial Attorney, Office of 7 Immigration Litigation, United 8 States Department of Justice, 9 Washington, DC. 10 1 1 UPON DUE CONSIDERATION of this petition for review of a 1 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 3 ORDERED, ADJUDGED, AND DECREED, that the petition for review 1 4 is DENIED. 1 5 Liming Wu-Fan, a native and citizen of the People’s 1 6 Republic of China, seeks review of a January 27, 2009 order 1 7 of the BIA, affirming the April 26, 2007 decision of 1 8 Immigration Judge (“IJ”) Douglas B. Schoppert, which denied 1 9 his application for asylum, withholding of removal, and 2 0 relief under the Convention Against Torture (“CAT”). In re 21 Liming Wu-Fan , No. A099 539 112 (B.I.A. Jan. 27, 2009), 22 aff’gNo. A099 539 112 (Immig. Ct. N.Y. City Apr. 26, 2007). 2 3 We assume the parties’ familiarity with the underlying facts 2 4 and procedural history of this case. 2 5 When the BIA agrees with the IJ’s conclusion that a 2 6 petitioner is not credible and, without rejecting any of the 2 7 IJ’s grounds for decision, emphasizes particular aspects of3 1 that decision, this Court reviews the IJ's decision 2 including the portions not explicitly discussed by the BIA. 3 Yun-Zui Guan v. Gonzales , 432 F.3d 391, 394 (2d Cir. 2005). 4 We “defer to an IJ’s credibility determination unless, from 5 the totality of the circumstances, it is plain that no 6 reasonable fact-finder could make such an adverse 7 credibility ruling.” Xiu Xia Lin v. Mukasey , 534 F.3d 162, 8 167 (2d Cir. 2008). For asylum applications governed by the 9 REAL ID Act, the agency may, considering the totality of the 1 0 circumstances, base a credibility finding on an asylum 1 1 applicant’s demeanor, the plausibility of his or her 1 2 account, and inconsistencies, inaccuracies, or falsehoods in 1 3 his or her statements, without regard to whether they go “to 1 4 the heart of the applicant’s claim.” 8 U.S.C. 1 5 § 1158(b)(1)(B)(iii). 1 6 Substantial evidence supports the agency’s adverse 1 7 credibility determination. In finding Wu-Fan not credible, 1 8 the IJ reasonably relied on the striking similarities 1 9 between Wu-Fan’s asylum statement and a letter he submitted 2 0 from his father, which had purportedly been prepared 2 1 independently. For example, the IJ identified the paragraph 2 2 in Wu-Fan’s statement beginning “the good time didn’t last4 1 long, on 7/22/1999, the Chinese Government defined FaLunGong 2 as an evil religion . . .” as almost identical to his 3 father’s statement at the paragraph beginning “[t]he good 4 time didn’t last long, on July 22, 1999, the Chinese 5 government defined FalunGong as an evil religion . . . .” 6 The IJ also identified the paragraphs in each statement 7 beginning “on July 2005, since it was Sunday . . .” as strikingly similar. As we have stated, “striking 8 similarities between affidavits are an indication that the 9 1 0 statements are ‘canned,’” and as such, undermine an 1 1 applicant’s credibility. Mei Chai Ye v. U.S. Dep’t of 12 Justice , 489 F.3d 517, 526 (2d Cir. 2007); see also Surinder 13 Singh v. BIA , 438 F.3d at 145, 148 (2d Cir. 2006). 1 4 Moreover, the agency reasonably declined to credit Wu-Fan’s 1 5 explanations for these similarities, noting that it would be 1 6 impossible for independently prepared statements to be 1 7 virtually identical. See Majidi v. Gonzales , 430 F.3d 77, 1 8 80-81 (2d Cir. 2005). 1 9 The agency also relied on the inconsistency between Wu2 0 Fan’s testimony that his father’s letter had been sent 2 1 “directly” by his father, who lives in Fujian province, and 2 2 an envelope in the record suggesting that certain documents5 1 had been sent from Hong Kong. Although Wu-Fan offers a 2 plausible explanation for the discrepancy in his brief to 3 this Court, he made no such argument before the BIA. We 4 will not consider his explanation in the first instance. 5 See Lin Zhong v. U.S. Dept. of Justice, 480 F. 3d 104, 107 6 (2d Cir. 2007). 7 Finally, the agency relied on a discrepancy between Wu8 Fan’s testimony that when practicing Falun Gong, one must 9 face east, and evidence in the record suggesting that one 1 0 may face in any direction. That Wu-Fan lacked this level of 1 1 doctrinal knowledge was an insufficient basis upon which to 1 2 doubt his credibility. See Yose Rizal v. Gonzales , 442 F.3d 1 3 84, 90 (2d Cir. 2006). Nonetheless, this erroneous finding 1 4 does not necessitate remand. See Xiao Ji Chen v. U.S. Dept. 15 of Justice , 471 F.3d 315, 338 (2d Cir. 2006); see also Li 16 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 111 (2d Cir. 1 7 2006). The agency’s overall credibility determination was 1 8 reasonable considering the totality of the circumstances. 1 9 8 U.S.C. § 1158(b)(1)(B)(iii). Thus, because the only 2 0 evidence of a threat to Wu-Fan’s life or freedom depended on 2 1 his credibility, the agency’s denial of Wu-Fan’s application 2 2 for asylum, withholding of removal, and CAT relief was6 1 proper. See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2 2006).

For the foregoing reasons, the petition for review is 3 DENIED. 4 Having completed our review, we DISMISS the 5 petitioner's pending motion for a stay of removal as moot. 6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk 8 By:___________________________ 9