10-5239-ag

Yang v. Holder

BIA

Hom, IJ

A089 254 130

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

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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 17th day of November, two thousand eleven.

PRESENT:

DENNIS JACOBS,

Chief Judge,

PETER W. HALL,

GERARD E. LYNCH,

 Circuit Judges.

_____________________________________

FEI YANG,

Petitioner,

v. 10-5239-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

______________________________________

 

FOR PETITIONER: Peter Lobel, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Carl H. McIntyre, Jr.,

Assistant Director; Christina J.
2

Martin, Trial Attorney, Office of

Immigration Litigation, 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 Fei Yang, a native and citizen of China,

seeks review of the December 3, 2010, decision of the BIA

affirming the May 14, 2009, decision of Immigration Judge

(“IJ”) Sandy Hom denying his application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”). In re Fei Yang, No. A089 254 130

(B.I.A. Dec. 3, 2010), aff’g No. A089 254 130 (Immig. Ct.

N.Y. City May 14, 2009). We assume the parties’ familiarity

with the underlying facts and procedural history in this

case.

Under the circumstances of this case, we use the BIA’s

opinion as “the basis for judicial review.” 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); see also Xiu Xia Lin v. Mukasey, 534 F.3d

162, 165-66 (2d Cir. 2008); Bah v. Mukasey, 529 F.3d 99, 110

(2d Cir. 2008).

As an initial matter, although generally we lack

jurisdiction to review the agency’s pretermission of Yang’s

asylum application, see 8 U.S.C. § 1158(a)(3), we retain

jurisdiction to review constitutional claims and “questions

of law,” 8 U.S.C. § 1252(a)(2)(D). Contrary to Yang’s

assertion, the IJ applied the correct legal standard in

requiring him to show “by clear and convincing evidence”

that he had filed his asylum application within one year

after his arrival in the United States. 8 U.S.C.

§ 1158(a)(2)(B). Moreover, the IJ did not commit legal

error by affording Yang’s marriage registration certificate

little weight given that, as the agency found, it was not

authenticated by any means. See Xiao Ji Chen v. U.S. Dep't

of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (concluding

that the weight afforded to an applicant’s evidence in
3

immigration proceedings lies largely within the agency’s

discretion). 

As to the agency’s adverse credibility determination,

we defer to the finding “unless, from the totality of the

circumstances, it is plain that no reasonable fact-finder

could make such an adverse credibility ruling.” Xiu Xia

Lin, 534 F.3d at 165-66. For asylum applications, such as

Yang’s, governed by the REAL ID Act, the agency may,

“[c]onsidering the totality of the circumstances, . . . base

a credibility determination on the demeanor, candor, or

responsiveness of the applicant . . . , the consistency

between the applicant’s or witness’s written and oral

statements . . . , [and] the consistency of such statements

with other evidence of record . . . without regard to

whether an inconsistency . . . goes to the heart of the

applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

Lin, 534 F.3d at 163-64.

Substantial evidence supports the agency’s adverse

credibility determination. In finding Yang not credible,

the agency reasonably relied upon inconsistencies between

Yang’s testimony and the details in his asylum application

regarding the location of his arrest, as well as his

inconsistent explanations when asked to clarify his

testimony. The agency also reasonably relied on the vague

and inconsistent nature of Yang’s responses to questions

about the differences between registered and unregistered

churches and his own religious practices. Moreover, given

the non-responsiveness of his explanations, a reasonable

fact finder would not be compelled to credit them. See

Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). 

Having questioned Yang’s credibility, the IJ reasonably

relied further on Yang’s failure to provide reliable

evidence corroborating his assertions that he was involved

in an underground church in China and that he continued to

practice Christianity in the United States. See Biao Yang

v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (recognizing

that a failure to corroborate may bear on credibility,

either because the absence of particular corroborating

evidence is viewed as suspicious, or because the absence of

corroboration in general makes an applicant unable to

rehabilitate testimony that has already been called into
4

question). Contrary to Yang’s contention, before relying on

a lack of corroboration to support an adverse credibility

finding the IJ was not required to first identify the

particular pieces of what he thought was missing relevant

evidence and then determine that this evidence was

reasonably available. See Xiao Ji Chen, 471 F.3d at 341

(holding that these steps are not required when the

applicant is not otherwise credible). Furthermore, the

agency did not err in relying on the adverse credibility

determination both as an alternative basis for denying

asylum relief and as a ground for denying withholding of

removal, as both claims were based on the same factual

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

2006); see also Xue Hong Yang v. U.S. Dep’t of Justice, 426

F.3d 520, 523 (2d Cir. 2005) (same, with respect to CAT).

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 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