10-4830-ag

Cui v. Holder

BIA

Nelson, IJ

A098 604 532

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 10th 4 day of April, two thousand twelve.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 DEBRA ANN LIVINGSTON,

9 GERARD E. LYNCH,

10 Circuit Judges.

11 _____________________________________

12

13 MING LAN CUI,

14 Petitioner, 

15

16 v. 10-4830-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Thomas V. Massucci, New York, NY.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Jennifer J. Keeney, Senior

27 Litigation Counsel; Cindy S.

28 Ferrier, Senior Litigation Counsel,

29 Office of Immigration Litigation,

30 United States Department of Justice,

31 Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 Petitioner Ming Lan Cui, a native and citizen of the

6 People’s Republic of China, seeks review of a November 1,

7 2010, order of the BIA, affirming the August 18, 2009,

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

9 which denied her application for asylum, withholding of

10 removal, and relief under the Convention Against Torture

11 (“CAT”). In re Ming Lan Cui, No. A098 604 532 (B.I.A. Nov.

12 1, 2010), aff’g No. A098 604 532 (Immig. Ct. N.Y. City Aug.

13 18, 2009). We assume the parties’ familiarity with the

14 underlying facts and procedural history in this case. 

15 Under the circumstances of this case, we have reviewed

16 both the IJ’s and the BIA’s opinions “for the sake of

17 completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.

18 2006). The applicable standards of review are well

19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

20 Holder, 562 F.3d 510, 513 (2d Cir. 2009). For applications,

21 such as this one, governed by the REAL ID Act of 2005, the

22 agency may, considering the totality of the circumstances,

23 base a credibility finding on an asylum applicant’s
3

1 demeanor, the plausibility of her account, and

2 inconsistencies in her 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); see also In re J-Y-C-, 24 I. & N. Dec.

5 260, 265 (BIA 2007). Analyzed under the REAL ID Act, the

6 agency’s adverse credibility determination is supported by

7 substantial evidence. 

8 In finding Cui not credible, the agency reasonably

9 noted that her testimony and documentation were inconsistent

10 regarding conversations she allegedly had with her husband

11 concerning the Chinese government’s interest in her

12 political activities. See Xiu Xia Lin v. Mukasey, 534 F.3d

13 162, 167 (2d Cir. 2008) (per curiam). Although Cui argues

14 that the IJ erred in failing to consider her explanations

15 for the inconsistencies, the IJ summarized Cui’s

16 explanations for her inconsistent statements – that she

17 misspoke because she was nervous, and forgot to include

18 information – and was not required to accept these

19 explanations, as they would not necessarily be compelling to

20 a reasonable fact-finder. See Majidi v. Gonzales, 430 F.3d

21 77, 81 (2d Cir. 2005). Cui further argues that the agency

22 erred in relying on the inconsistencies in her testimony
4

1 because she was asked confusing questions that suggested

2 that the Chinese police had visited her rather than her

3 husband. Although Cui is correct that Government counsel’s

4 use of the word “you” at the end of her question – “[h]ow do

5 you know this if your husband only said that the police had

6 come to visit you?” – implied that the Chinese police had

7 visited Cui, it is clear from the context that the intended

8 meaning was that the police had visited Cui’s husband, and

9 there is no indication that the errant pronoun caused any

10 real confusion. Thus, the agency reasonably relied on the

11 inconsistencies in Cui’s testimony to find her not credible. 

12 See Xiu Xia Lin, 534 F.3d at 167. 

13 The IJ also relied in part on Cui’s demeanor to find

14 her not credible, noting that “[s]he had difficulty

15 answering questions” and “had to pause frequently for long

16 periods of time before answering questions” and that it

17 appeared “that she was making up her story as she went along

18 in terms of the information that her husband had and her

19 husband gave her.” Because the IJ was in the best position

20 to observe Cui’s manner while testifying, we accord her

21 demeanor finding particular deference. See Shu Wen Sun v.

22 BIA, 510 F.3d 377, 380-81 (2d Cir. 2007) (per curiam); Jin
5

1 Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.

2 2005). Moreover, because the IJ identified inconsistencies

3 in her testimony as another reason to doubt Cui’s

4 credibility, as discussed above, we may confidently rely on

5 the IJ’s demeanor finding. See Li Hua Lin v. U.S. Dep’t of

6 Justice, 453 F.3d 99, 109 (2d Cir. 2006). 

7 Cui finally argues that even if her testimony was not

8 credible, she demonstrated a well-founded fear that the

9 Chinese government will become aware of her political

10 activities. As the Government notes, however, Cui failed to

11 exhaust this argument before the BIA. We therefore decline

12 to address it. See Lin Zhong v. U.S. Dep’t of Justice, 480

13 F.3d 104, 122 (2d Cir. 2007). Contrary to Cui’s suggestion,

14 this argument is not subsidiary to or an extension of the

15 arguments she raised on appeal before the BIA – that the IJ

16 failed to consider her explanations and that corroborative

17 evidence was not readily available. See Steevenez v.

18 Gonzales, 476 F.3d 114, 117-18 (2d Cir. 2007).

19 Thus, the agency did not err in denying Cui’s

20 applications for asylum and withholding of removal, as both

21 claims shared the same factual predicate. See Paul v.

22 Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006). Cui does not

23 challenge the denial of her application for CAT relief. 
6

1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, Cui’s pending

3 motion for a stay of removal in this petition is DISMISSED

4 as moot. Cui’s pending request for oral argument in this

5 petition is DENIED in accordance with Federal Rule of

6 Appellate Procedure 34(a)(2) and Second Circuit Local Rule

7 34.1(b).

8 FOR THE COURT: 

9 Catherine O’Hagan Wolfe, Clerk

10

11