12-609

Tan v. Holder

BIA

Vomacka, IJ

A088 794 200

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 16th 4 day of September, two thousand thirteen.

5

6 PRESENT:

7 ROBERT D. SACK,

8 PETER W. HALL,

9 SUSAN L. CARNEY,

10 Circuit Judges. 

11 _____________________________________

12

13 LI MING TAN,

14 Petitioner, 

15

16 v. 12-609

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Michael Brown, New York, New York.

24

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

26 Attorney General; Paul Fiorino,

27 Senior Litigation Counsel; Julie S.

28 Saltman, Trial Attorney, Office of
1 Immigration Litigation, Civil

2 Division, United States Department

3 of Justice, 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 Li Ming Tan, a native and citizen of the People’s

10 Republic of China, seeks review of a February 2, 2012, order

11 of the BIA, affirming the November 1, 2010, decision of

12 Immigration Judge (“IJ”) Alan A. Vomacka, which denied his

13 application for asylum, withholding of removal, and relief

14 under the Convention Against Torture (“CAT”). In re Li Ming

15 Tan, No. A088 794 200 (B.I.A. Feb. 2, 2012), aff’g No. A088

16 794 200 (Immig. Ct. N.Y. City Nov. 1, 2010). 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 have reviewed

20 the IJ’s decision as modified by the BIA’s decision. 

21 See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520,

22 522 (2d Cir. 2005). The applicable standards of review are

23 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

24 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

2
1 For asylum applications such as Tan’s, governed by the

2 REAL ID Act, the agency may, considering the totality of the

3 circumstances, base a credibility finding on an asylum

4 applicant’s demeanor, the plausibility of his account, and

5 inconsistencies in his statements, without regard to whether

6 they go “to the heart of the applicant’s claim.” 8 U.S.C.

7 § 1158(b)(1)(B)(iii). 

8 In finding Tan not credible, the agency reasonably

9 relied in part on his demeanor, finding that, rather than

10 testifying from actual experience, Tan appeared as if he

11 were telling a story that he had previously memorized but

12 could not adequately recall. See Jin Chen v. U.S. Dep’t of

13 Justice, 426 F.3d 104, 113 (2d Cir. 2005). The IJ’s

14 demeanor findings were further supported by specific

15 examples of Tan’s inconsistent testimony. See Li Hua Lin v.

16 U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006). In

17 this regard, the agency reasonably found that Tan failed to

18 provide a consistent account with regard to whether he had

19 suffered any harm in China on account of his practice of

20 Falun Gong, and the number of times he was detained by

21 village committee officials on account of his Falun Gong22 related activities. See Xiu Xia Lin v. Mukasey, 534 F.3d

3
1 162, 167 (2d Cir. 2008) (per curiam); see also Iouri v.

2 Ashcroft, 487 F.3d 76, 81-82 (2d Cir. 2007). Contrary to

3 Tan’s argument, the IJ did not err by failing to give him an

4 opportunity to explain these inconsistences, as the

5 inconsistent statements were dramatic, were made in response

6 to questions posed by his own attorney, and the agency’s

7 adverse credibility determination did not rest on these

8 inconsistencies alone. See Ming Shi Xue v. BIA, 439 F.3d

9 111, 125 (2d Cir.2006).

10 Furthermore, the agency reasonably found that the

11 testimony of Tan’s witness and the letters from Tan’s father

12 and friend in China were inadequate to rehabilitate his

13 incredible testimony, as they were of limited probative

14 value. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

15 Cir. 2007); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

16 315, 342 (2d Cir. 2006).

17 Ultimately, because a reasonable fact-finder would not

18 be compelled to conclude to the contrary regarding the

19 agency’s demeanor, inconsistency, and corroboration

20 findings, the agency’s adverse credibility determination is

21 supported by substantial evidence. See Xiu Xia Lin, 534

22 F.3d at 165-66. The agency’s denial of Tan’s application

4
1 for asylum, withholding of removal, and CAT relief was not

2 in error as all three claims shared the same factual

3 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

4 2006) (withholding of removal); Xue Hong Yang v. U.S. Dep’t

5 of Justice, 426 F.3d 520, 523 (2d Cir. 2006) (CAT).

6 For the foregoing reasons, the petition for review is

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

8 removal that the Court previously granted in this petition

9 is VACATED, and any pending motion for a stay of removal in

10 this petition is DISMISSED as moot. Any pending request for

11 oral argument in this petition is DENIED in accordance with

12 Federal Rule of Appellate Procedure 34(a)(2), and Second

13 Circuit Local Rule 34.1(b).

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk

5