11-3940 Cui-Run v. Holder

BIA Morace, IJ A087 434 445 

### 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 Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of New** 3 **York, on the 25 th** **day of July, two thousand twelve.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 Chief Judge, 8 **ROBERT D. SACK,** 9 **RAYMOND J. LOHIER, JR.,** 10 Circuit Judges**.** 11

**_____________________________________** 12 13 **SONGJIE CUI-RUN,** 14 Petitioner**,** 15 16 **v. 11-3940** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**_____________________________________** 22 23 **FOR PETITIONER: David A. Bredin, New York, N.Y.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Mary Jane Candaux,** 27 **Assistant Director; Ashley Y. Martin,** 28 **Trial Attorney; Katelin Buell, Law** 29 **Clerk; Office of Immigration** 30 **Litigation, United States Department of** 31 **Justice, Washington, D.C.** 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Songjie Cui-Run, a native and citizen of the 5 People’s Republic of China, seeks review of a September 1, 6 2011, decision of the BIA affirming the June 18, 2010, 7 decision of an Immigration Judge (“IJ”) denying his 8 application for asylum, withholding of removal and relief 9 under the Convention Against Torture (“CAT”). In re Songjie 10 Cui-Run, No. A087 434 445 (B.I.A. Sept. 1, 2011), aff’gNo. 11 A087 434 445 (Immig. Ct. N.Y. City June 18, 2010). We assume 12 the parties’ familiarity with the underlying facts and 13 procedural history of the case. 14 Under the circumstances of this case, we have reviewed 15 the IJ’s decision as the final agency determination. See 16 Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The 17 applicable standards of review are well established. See 18 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 19 F.3d 162, 165-66 (2d Cir. 2008) (per curiam). 20 For asylum applications, like Cui-Run’s, governed by the 21 REAL ID Act, the agency may, considering the totality of the 223 circumstances, base a credibility finding on an asylum 1 applicant’s demeanor, the plausibility of his account, and 2 inconsistencies in his statements without regard to whether 3 they go “to the heart of the applicant’s claim.” 8 U.S.C. 4 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. 5 Substantial evidence supports the agency’s determination 6 that Cui-Run did not testify credibly regarding his claim that 7 he was persecuted in China on the basis of his Christian 8 faith. The IJ reasonably relied on the implausibility of Cui9 Run’s testimony, see 8 U.S.C. § 1158(b)(1)(B)(iii), and the 10 IJ’s reasoning was “tethered to record evidence,” Wengsheng 11 Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007). The IJ 12 reasonably determined that: it was implausible that Cui-Run 13 would not be able to recall the day of the week on which his 14 father was arrested while hosting a Christian worship meeting 15 in his home, particularly because Cui-Run testified that their 16 worship group gathered only on Sundays and Wednesdays to 17 worship; and that Cui-Run could not recall the name of the 18 relative whose household register he submitted in support of 19 his claim, particularly in light of Cui-Run’s testimony that 20 he transferred his registration to the other household in 21 order to work. Because the IJ’s implausibility findings are 224 based on record facts, and because “there is nothing else in 1 the record from which a firm conviction of error could 2 properly be derived,” id. , the inherent implausibility of Cui3 Run’s testimony provides substantial support for the agency’s 4 adverse credibility determination, see8 U.S.C. 5 § 1158(b)(1)(B)(iii) (providing that the agency may base a 6 credibility determination on “the plausibility of the 7 applicant’s . . . account”). 8 Further, in finding Cui-Run not credible, the IJ 9 reasonably relied in part on his demeanor, noting that Cui10 Run’s testimony was vague, hesitant and lacking in detail. 11 Because the IJ was in the best position to observe Cui-Run’s 12 manner while testifying, we afford this demeanor finding 13 particular deference. See Zhou Yun Zhang v. INS, 386 F.3d 66, 14 73-74 (2d Cir. 2004), overruled on other grounds by Shi Liang 15 Lin v. U.S. Dep’t of Justice , 494 F.3d 296 (2d Cir. 2007) (en 16 banc). 17 Further, having questioned Cui-Run’s credibility, the IJ 18 reasonably relied on his failure to provide corroborating 19 evidence to support his claim that he had been persecuted in 20 China. An applicant’s failure to corroborate testimony may 21 bear on credibility, either because the absence of particular 225 corroborating evidence is viewed as suspicious, or because the 1 absence of corroboration in general makes an applicant unable 2 to rehabilitate testimony that has already been called into 3 question. See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d 4 Cir. 2007) (per curiam). Thus, the agency reasonably 5 concluded that, in light of Cui-Run’s lack of credibility, his 6 failure to offer evidence supporting his claim that he was 7 persecuted in China adversely affected his credibility. 8 Further, the IJ’s decision to decline to allow Reverend Kim’s 9 testimony is entitled to particular deference. See Xiao Ji 10 Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 342 (2d Cir. 11 2006). 12 We lack jurisdiction to consider Cui-Run’s argument that 13 the BIA erred in affirming the IJ’s decision without opinion. 14 See Kambolli v. Gonzales , 449 F.3d 454, 463 (2d Cir. 2006). 15 Further, because he failed to challenge the IJ’s denial of his 16 request for CAT relief in his brief to the BIA, we lack 17 jurisdiction to consider his argument that the IJ did not 18 consider all of the evidence in support of his CAT claim. See 19 8 U.S.C. § 1252(d)(1) ; Karaj v. Gonzales , 462 F.3d 113, 119 20 (2d Cir. 2006) (citing Beharry v. Ashcroft , 329 F.3d 51, 59 21 (2d Cir. 2003)). 22

236 In light of the inherent implausibility of Cui-Run’s 1 testimony and his failure to corroborate his claims, and in 2 light of the Court’s deference to the agency’s findings 3 regarding demeanor, the agency’s adverse credibility 4 determination regarding Cui-Run’s claim that he suffered past 5 persecution in China was supported by substantial evidence. 6

See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 7 F.3d at 167 (explaining that this Court “defer[s] to an IJ’s 8 credibility determination unless, from the totality of the 9 circumstances, it is plain that no reasonable fact-finder 10 could make such an adverse credibility ruling”). Accordingly, 11 the agency did not err in denying Cui-Run’s application for 12 asylum and withholding of removal. 13 For the foregoing reasons, the petition for review is 14 DENIED. As we have completed our review, any stay of removal 15 that the Court previously granted in this petition is VACATED, 16 and any pending motion for a stay of removal in this petition 17 is DISMISSED as moot. Any pending request for oral argument in 18 this petition is DENIED in accordance with Federal Rule of 19 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 20 34.1(b). 21

FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 23

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