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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 16 th** **day of September, two thousand thirteen.** 4 5 **PRESENT:** 6 **ROBERT D. SACK,** 7 **PETER W. HALL,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **LI MING TAN,** 13 Petitioner**,** 14 15 **v. 12-609** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Michael Brown, New York, New York.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 25 **Attorney General; Paul Fiorino,** 26 **Senior Litigation Counsel; Julie S.** 27 **Saltman, Trial Attorney, Office of** 28**Immigration Litigation, Civil** 1 **Division, United States Department** 2 **of Justice, Washington, D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Li Ming Tan, a native and citizen of the People’s 9 Republic of China, seeks review of a February 2, 2012, order 10 of the BIA, affirming the November 1, 2010, decision of 11 Immigration Judge (“IJ”) Alan A. Vomacka, which denied his 12 application for asylum, withholding of removal, and relief 13 under the Convention Against Torture (“CAT”). In re Li Ming 14

Tan, No. A088 794 200 (B.I.A. Feb. 2, 2012), aff’gNo. A088 15 794 200 (Immig. Ct. N.Y. City Nov. 1, 2010). We assume the 16 parties’ familiarity with the underlying facts and 17 procedural history in this case. 18 Under the circumstances of this case, we have reviewed 19 the IJ’s decision as modified by the BIA’s decision. 20 See Xue Hong Yang v. U.S. Dep't of Justice , 426 F.3d 520, 21 522 (2d Cir. 2005). The applicable standards of review are 22 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng 23 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 24

2For asylum applications such as Tan’s, governed by the 1 REAL ID Act, the agency may, considering the totality of the 2 circumstances, base a credibility finding on an asylum 3 applicant’s demeanor, the plausibility of his account, and 4 inconsistencies in his statements, without regard to whether 5 they go “to the heart of the applicant’s claim.” 8 U.S.C. 6 § 1158(b)(1)(B)(iii). 7 In finding Tan not credible, the agency reasonably 8 relied in part on his demeanor, finding that, rather than 9 testifying from actual experience, Tan appeared as if he 10 were telling a story that he had previously memorized but 11 could not adequately recall. See Jin Chen v. U.S. Dep’t of 12 Justice , 426 F.3d 104, 113 (2d Cir. 2005). The IJ’s 13 demeanor findings were further supported by specific 14 examples of Tan’s inconsistent testimony. See Li Hua Lin v. 15 U.S. Dep’t of Justice , 453 F.3d 99, 109 (2d Cir. 2006). In 16 this regard, the agency reasonably found that Tan failed to 17 provide a consistent account with regard to whether he had 18 suffered any harm in China on account of his practice of 19 Falun Gong, and the number of times he was detained by 20 village committee officials on account of his Falun Gong21 related activities. See Xiu Xia Lin v. Mukasey, 534 F.3d 22

3162, 167 (2d Cir. 2008) (per curiam); see also Iouri v. 1 Ashcroft , 487 F.3d 76, 81-82 (2d Cir. 2007). Contrary to 2 Tan’s argument, the IJ did not err by failing to give him an 3 opportunity to explain these inconsistences, as the 4 inconsistent statements were dramatic, were made in response 5 to questions posed by his own attorney, and the agency’s 6 adverse credibility determination did not rest on these 7 inconsistencies alone. See Ming Shi Xue v. BIA, 439 F.3d 8 111, 125 (2d Cir.2006). 9 Furthermore, the agency reasonably found that the 10 testimony of Tan’s witness and the letters from Tan’s father 11 and friend in China were inadequate to rehabilitate his 12 incredible testimony, as they were of limited probative 13 value. See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d 14 Cir. 2007) ; Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 15 315, 342 (2d Cir. 2006). 16 Ultimately, because a reasonable fact-finder would not 17 be compelled to conclude to the contrary regarding the 18 agency’s demeanor, inconsistency, and corroboration 19 findings, the agency’s adverse credibility determination is 20 supported by substantial evidence.See Xiu Xia Lin , 534 21 F.3d at 165-66. The agency’s denial of Tan’s application 22

4for asylum, withholding of removal, and CAT relief was not 1 in error as all three claims shared the same factual 2 predicate. See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 3 2006) (withholding of removal); Xue Hong Yang v. U.S. Dep’t 4 of Justice , 426 F.3d 520, 523 (2d Cir. 2006) (CAT). 5 For the foregoing reasons, the petition for review is 6 DENIED. As we have completed our review, any stay of 7 removal that the Court previously granted in this petition 8 is VACATED, and any pending motion for a stay of removal in 9 this petition is DISMISSED as moot. Any pending request for 10 oral argument in this petition is DENIED in accordance with 11 Federal Rule of Appellate Procedure 34(a)(2), and Second 12 Circuit Local Rule 34.1(b). 13
FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15

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