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. CI** **TATION 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** 3 **New York, on the 19 th** **day of April, two thousand eleven.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **JOSEPH M. McLAUGHLIN,** 8 **ROBERT A. KATZMANN,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **Zongdang Ouyang,** 13 Petitioner**,** 14 15 **v. 10-1530-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., U.S. ATTORNEY** 18 **GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Gary J. Yerman, New York, NY.** 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney** 25 **General; Paul Fiorino, Senior** 26 **Litigation Counsel; Judith R.** 27 **O’Sullivan, Trial Attorney, Office** 28 **of Immigration Litigation, Civil** 29 **Division, United States Department** 30 **of Justice, Washington, D.C.**2 UPON DUE CONSIDERATION of this petition for review of a 1 decision of the Board of Immigration Appeals (“BIA”), it is 2 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 3 review is DENIED. 4 Petitioner Zongdang Ouyang, a native and citizen of the 5 People’s Republic of China, seeks review of an April 2, 6 2010, order of the BIA affirming the May 21, 2008, decision 7 of Immigration Judge (“IJ”) Barbara A. Nelson, pretermitting 8 his asylum application and denying his application for 9 withholding of removal and relief under the Convention 10 Against Torture (“CAT”). In re Zongdang Ouyang, No. A088 11 377 795 (B.I.A. Apr. 2, 2010), aff’g No. A088 377 795 12 (Immigr. Ct. N.Y. City May 21, 2008). We assume the 13 parties’ familiarity with the underlying facts and 14 procedural history of the case. 15 Under the circumstances of this case , we review the 16 IJ’s decision as modified by the BIA decision. See Xue Hong 17 Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 18 2005). The applicable standards of review are well19 established. See8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia 20 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per 21 curiam); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 22 2008). 233 Substantial evidence supports the IJ’s adverse 1 credibility determination. The IJ’s adverse credibility 2 finding was based on several discrepancies among statements 3 in Ouyang’s written asylum application, testimony, and 4 corroborating evidence. As the IJ found: (1) although 5 Ouyang testified and indicated in his supplementary 6 statement that he had resisted family planning officials 7 each time his wife was forced to have an abortion, he 8 omitted these details from his original asylum application; 9 (2) although Ouyang’s testimony and letters from his sister 10 and his wife indicated that he was detained overnight, he 11 omitted this detail from his asylum application and his 12 supplemental statement; and (3) although Ouyang’s testimony 13 and a letter from his sister indicated that he was injured 14 by a family planning official to such an extent that he 15 required medical treatment, Ouyang omitted this detail from 16 his asylum application and his supplemental statement. 17 Because the IJ was entitled to rely on any discrepancy to 18 find Ouyang not credible, the IJ properly relied on these 19 inconsistencies. See 8 U.S.C. § 1158(b)(1)(B)(iii) 20 (permitting a trier of fact to base a credibility 21 determination on, inter alia , “the consistency between the 22 applicant’s . . . written and oral statements”; see also Xiu 234 Xia Lin, 534 F.3d at 166 n.3 (explaining that a “direct 1 inconsistency” in an applicant’s testimony and written 2 submission “can serve as a proper basis for an adverse 3 credibility determination”). Additionally, the IJ did not, 4 contrary to Ouyang’s contention, engage in improper 5 speculation or bias when she noted that Ouyang amended his 6 statements following the issuance of Shi Liang Lin v. 7 Mukasey, 494 F.3d 296 (2d Cir. 2007) (en banc), as that 8 observation was based on specific examples in the record. 9 See Siewe v. Gonzales , 480 F.3d 160, 168-69 (2d Cir. 2007) 10 (holding that although “bald” speculation is an 11 impermissible basis for an adverse credibility finding, 12 “[t]he speculation that inheres in inference is not bald if 13 the inference is made available to the factfinder by record 14 facts, or even a single fact, viewed in the light of common 15 sense and ordinary experience” (internal quotation marks 16 omitted)). 17 Furthermore, the IJ reasonably declined to credit 18 Ouyang’s explanations that: (1) he failed to mention his 19 overnight detention in his asylum application and 20 supplementary statement because he forgot and because he did 21 not consider the detention to be a “law enforcement agency 225 arrest or detention”; (2) he failed to mention his medical 1 treatment in his asylum application and supplementary 2 statement because the injury was not serious, particularly 3 in comparison to his wife’s forced abortion; and (3) his 4 wife failed to mention his medical treatment in her letter 5 because only his sister accompanied him to the hospital. 6 See Majidi v. Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005) 7 (emphasizing that the agency need not credit an applicant’s 8 explanations for inconsistent testimony unless those 9 explanations would compel a reasonable factfinder to do so). 10 Accordingly, considering the totality of the 11 circumstances, the IJ’s adverse credibility determination 12 was supported by substantial evidence. See8 U.S.C. 13 § 1158(b)(1)(B)(iii). The adverse credibility determination 14 in this case necessarily precludes success on Ouyang’s 15 claims for asylum and withholding of removal because those 16 claims were based on the same factual predicate. See Paul 17 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (“[W]e have 18 routinely decided . . . that a withholding of removal claim 19 was meritless since the alien’s asylum claim had failed on 20 adverse credibility grounds.”). Ouyang has abandoned any 21 challenge to the denial of CAT relief. 226 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, any stay of 2 removal that the Court previously granted in this petition 3 is VACATED, and any pending motion for a stay of removal in 4 this petition is DISMISSED as moot. Any pending request for 5 oral argument in this petition is DENIED in accordance with 6 Federal Rule of Appellate Procedure 34(a)(2), and Second 7 Circuit Local Rule 34.1(b). 8

FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11 12 13