10-807-ag

Li v. Holder

BIA

Schoppert, IJ

A094 046 387

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 16th 4 day of February, two thousand eleven.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 PETER W. HALL,

9 GERARD E. LYNCH,

10 Circuit Judges. 

11 _______________________________________

12

13 LING ZHI LI,

14 Petitioner, 

15

16 v. 10-807-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 ______________________________________ 22

23 FOR PETITIONER: Lee Ratner, Law Offices of Michael

24 Brown, New York, NY

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; James E. Grimes, Senior

28 Litigation Counsel; William C.

29 Minick, Attorney, Office of

30 Immigration Litigation, U.S.

31 Department of Justice, Washington

32 D.C.
2

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 Ling Zhi Li, a native and citizen of the People’s

6 Republic of China, seeks review of a February 16, 2010,

7 order of the BIA affirming the July 25, 2008, decision of

8 Immigration Judge (“IJ”) Douglas B. Schoppert, which denied

9 his application for asylum, withholding of removal, and

10 relief under the Convention Against Torture (“CAT”). In re

11 Ling Zhi Li, No. A094 046 387(B.I.A. Feb. 16, 2010), aff’g

12 No. A094 046 387 (Immig. Ct. N.Y. City July 25, 2008). We

13 assume the parties’ familiarity with the underlying facts

14 and procedural history in this case.

15 Under the circumstances of this case, we review the

16 BIA’s opinion as well as the portions of the IJ’s opinion

17 not explicitly discussed by the BIA. See Yun-Zui Guan v.

18 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). We review

19 factual findings, including credibility determinations, for

20 substantial evidence, upholding them unless any reasonable

21 adjudicator would be compelled to reach the contrary

22 conclusion. See 8 U.S.C. § 1252(b)(4)(B); Corovic v.
3

1 Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).

2 The agency’s adverse credibility determination is based

3 on substantial evidence given the inconsistencies between

4 Li’s and his sister’s testimony. See 8 U.S.C.

5 § 1158(b)(1)(B)(iii) (providing that an adverse credibility

6 determination may be based on “the consistency between the

7 applicant’s or witness’s written and oral statements . . .,

8 the internal consistency of each such statement, the

9 consistency of such statements with other evidence of record

10 . . ., and any inaccuracies or falsehoods in such

11 statements, without regard to whether an inconsistency

12 . . . goes to the heart of the applicant’s claim.”). 

13 Although Li argues that the inconsistencies regarding the

14 date of his arrival in the United States and the purpose for

15 taking photographs of him practicing Falun Gong were not

16 truly inconsistencies, the record supports the agency’s

17 finding that he and his sister provided directly

18 contradictory testimony. While Li testified that he arrived

19 in March 2006, his sister testified on multiple occasions

20 that he arrived in 2007 and, when confronted with the

21 discrepancy, testified that Li arrived at the end of the

22 year 2006. Similarly, while Li testified that the
4

1 photographs of his Falun Gong practice were taken for him to

2 have as souvenirs and not for purposes of his asylum

3 application, Li’s sister testified that they were taken to

4 support the asylum application. Thus, the agency reasonably

5 relied on these inconsistencies in supporting its adverse

6 credibility determination. See id.

7 While Li further contests the timeliness of his asylum

8 application, see 8 U.S.C. § 1158(a)(2)(B), we do not have

9 jurisdiction to review that determination, see id.

10 § 1158(a)(3). Li makes no argument that the jurisdictional

11 bar should not apply to his case. Even if one treats his

12 accusation that the IJ “speculated” as an attempt to frame a

13 reviewable legal question, his argument remains “essentially

14 a quarrel about fact-finding,” and so we lack jurisdiction

15 to hear it. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

16 315, 330 (2d Cir. 2006). 

17 For the foregoing reasons, the petition for review is

18 DENIED. As we have completed our review, Li’s pending

19 motion for a stay of removal in this petition is DISMISSED

20 as moot. 

21 FOR THE COURT:

22 Catherine O’Hagan Wolfe, Clerk