10-1530-ag

Ouyang v. Holder

BIA

Nelson, IJ

A088 377 795

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 19th 4 day of April, two thousand eleven.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 JOSEPH M. McLAUGHLIN,

9 ROBERT A. KATZMANN,

10 Circuit Judges.

11 _______________________________________

12

13 Zongdang Ouyang,

14 Petitioner,

15

16 v. 10-1530-ag

17 NAC

18 ERIC H. HOLDER, JR., U.S. ATTORNEY 

19 GENERAL, 

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Gary J. Yerman, New York, NY.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Paul Fiorino, Senior

27 Litigation Counsel; Judith R.

28 O’Sullivan, Trial Attorney, Office

29 of Immigration Litigation, Civil

30 Division, United States Department

of Justice, Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4 review is DENIED.

5 Petitioner Zongdang Ouyang, a native and citizen of the

6 People’s Republic of China, seeks review of an April 2,

7 2010, order of the BIA affirming the May 21, 2008, decision

8 of Immigration Judge (“IJ”) Barbara A. Nelson, pretermitting

9 his asylum application and denying his application for

10 withholding of removal and relief under the Convention

11 Against Torture (“CAT”). In re Zongdang Ouyang, No. A088

12 377 795 (B.I.A. Apr. 2, 2010), aff’g No. A088 377 795

13 (Immigr. Ct. N.Y. City May 21, 2008). We assume the

14 parties’ familiarity with the underlying facts and

15 procedural history of the case. 

16 Under the circumstances of this case, we review the

17 IJ’s decision as modified by the BIA decision. See Xue Hong

18 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

19 2005). The applicable standards of review are well20 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia

21 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per

22 curiam); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.

23 2008).
3

1 Substantial evidence supports the IJ’s adverse

2 credibility determination. The IJ’s adverse credibility

3 finding was based on several discrepancies among statements

4 in Ouyang’s written asylum application, testimony, and

5 corroborating evidence. As the IJ found: (1) although

6 Ouyang testified and indicated in his supplementary

7 statement that he had resisted family planning officials

8 each time his wife was forced to have an abortion, he

9 omitted these details from his original asylum application;

10 (2) although Ouyang’s testimony and letters from his sister

11 and his wife indicated that he was detained overnight, he

12 omitted this detail from his asylum application and his

13 supplemental statement; and (3) although Ouyang’s testimony

14 and a letter from his sister indicated that he was injured

15 by a family planning official to such an extent that he

16 required medical treatment, Ouyang omitted this detail from

17 his asylum application and his supplemental statement. 

18 Because the IJ was entitled to rely on any discrepancy to

19 find Ouyang not credible, the IJ properly relied on these

20 inconsistencies. See 8 U.S.C. § 1158(b)(1)(B)(iii)

21 (permitting a trier of fact to base a credibility

22 determination on, inter alia, “the consistency between the

23 applicant’s . . . written and oral statements”; see also Xiu
4

1 Xia Lin, 534 F.3d at 166 n.3 (explaining that a “direct

2 inconsistency” in an applicant’s testimony and written

3 submission “can serve as a proper basis for an adverse

4 credibility determination”). Additionally, the IJ did not,

5 contrary to Ouyang’s contention, engage in improper

6 speculation or bias when she noted that Ouyang amended his

7 statements following the issuance of Shi Liang Lin v.

8 Mukasey, 494 F.3d 296 (2d Cir. 2007) (en banc), as that

9 observation was based on specific examples in the record. 

10 See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007)

11 (holding that although “bald” speculation is an

12 impermissible basis for an adverse credibility finding,

13 “[t]he speculation that inheres in inference is not bald if

14 the inference is made available to the factfinder by record

15 facts, or even a single fact, viewed in the light of common

16 sense and ordinary experience” (internal quotation marks

17 omitted)). 

18 Furthermore, the IJ reasonably declined to credit

19 Ouyang’s explanations that: (1) he failed to mention his

20 overnight detention in his asylum application and 

21 supplementary statement because he forgot and because he did

22 not consider the detention to be a “law enforcement agency
5

1 arrest or detention”; (2) he failed to mention his medical

2 treatment in his asylum application and supplementary

3 statement because the injury was not serious, particularly

4 in comparison to his wife’s forced abortion; and (3) his

5 wife failed to mention his medical treatment in her letter

6 because only his sister accompanied him to the hospital. 

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

8 (emphasizing that the agency need not credit an applicant’s

9 explanations for inconsistent testimony unless those

10 explanations would compel a reasonable factfinder to do so).

11 Accordingly, considering the totality of the

12 circumstances, the IJ’s adverse credibility determination

13 was supported by substantial evidence. See 8 U.S.C.

14 § 1158(b)(1)(B)(iii). The adverse credibility determination

15 in this case necessarily precludes success on Ouyang’s

16 claims for asylum and withholding of removal because those

17 claims were based on the same factual predicate. See Paul

18 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (“[W]e have

19 routinely decided . . . that a withholding of removal claim

20 was meritless since the alien’s asylum claim had failed on

21 adverse credibility grounds.”). Ouyang has abandoned any

22 challenge to the denial of CAT relief.
6

1 For the foregoing reasons, the petition for review is

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

3 removal that the Court previously granted in this petition

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

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

6 oral argument in this petition is DENIED in accordance with

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

8 Circuit Local Rule 34.1(b).

9 FOR THE COURT:

10 Catherine O’Hagan Wolfe, Clerk

11

12

13