09-3322-ag

You v. Holder

BIA

Sichel, IJ

A095 687 416

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

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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

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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

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 28th day of October, two thousand ten.

PRESENT:

REENA RAGGI,

PETER W. HALL,

GERARD E. LYNCH,

 Circuit Judges.

_______________________________________

Ting You,

Petitioner, 

 v. 09-3322-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Gang Zhou, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General, Civil Division; Richard M.

Evans , Assistant Director; Andrew

Oliveira, Trial Attorney, Office of

Immigration Litigation, Civil

Division, United States Department

of Justice, Washington, D.C.
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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.

Ting You, a native and citizen of China, seeks review

of a July 14, 2009 order of the BIA, affirming the November

2, 2007 decision of Immigration Judge (“IJ”) Helen Sichel,

which denied You’s application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”), and his motion to remand. In re Tin You, No. A095

687 416 (B.I.A. July 14, 2009), aff’g No. A095 687 416

(Immig. Ct. N.Y. City Nov. 2, 2007). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

Under the circumstances of this case, we review the

decision of the IJ as supplemented by the BIA. See 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); Yanqin Weng v. Holder, 562 F.3d 510,

513-14 (2d Cir. 2009).

I. Asylum, Withholding of Removal, and CAT Relief

Substantial evidence supports the IJ’s adverse

credibility determination. The IJ reasonably relied on an
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inconsistency between (1) You’s testimony, in which he

stated that he was by himself when he distributed Falun Gong

flyers, and (2) his father’s letter, which indicated that he

and his son had distributed the flyers together. This

inconsistency is material because it pertains to the single

event for which You claims he was persecuted. See SecaidaRosales v. INS, 331 F.3d 297, 307-09 (2d Cir. 2003). In

addition, the IJ identified several additional discrepancies

that, cumulatively, further undermined You’s credibility. 

See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006). 

These included an internal inconsistency in You’s testimony

regarding whether a smuggler had arranged You’s flight from

China to the United States, and an implicit inconsistency

between You’s testimony, which asserted that his father had

been arrested numerous times for practicing and supporting

Falun Gong, and his father’s letter, which failed to mention

multiple arrests. To the extent You offered explanations

for these discrepancies, the IJ was not required to credit

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

2005). 

 Thus, while the record support for other identified

inconsistencies might be questioned, we conclude that these
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discrepancies supported by the record cumulatively

undermined You’s credibility. See Liang Chen v. U.S. Att'y

Gen., 454 F.3d 103, 106-107 (2d Cir. 2006). Accordingly,

remand on account of the erroneous findings would be futile

because we can “confidently predict” that the IJ would reach

the same decision absent the errors that were made. Xiao Ji

Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.

2006). 

Because petitioner based his withholding of removal and

CAT claim on the same factual predicate as his asylum claim,

the IJ’s adverse credibility determination was fatal to all

three claims. See Paul v. Gonzales, 444 F.3d 148, 156-57

(2d Cir. 2006).

II. Motion to Remand 

You filed a motion to remand before the BIA based on

changed circumstances: he now belongs to the Falun Gong

movement, his father has promised to assist the government

in arresting his son if You returns to China, and conditions

in China have worsened for Falun Gong practitioners. We

review the BIA’s denial of a motion to remand for abuse of

discretion. See Li Yong Cao v. U.S. Dep't of Justice, 421

F.3d 149, 157 (2d Cir. 2005).
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We identify no abuse here because the BIA denial was

reasonably based on the IJ’s underlying adverse credibility

determination, see Qin Wen Zheng v. Gonzales, 500 F.3d 143,

146-48 (2d. Cir. 2007); You’s failure to establish material

changed country conditions; and You’s failure to offer

evidence that was new and previously unavailable, see 8

C.F.R. § 1003.2(c)(1); INS v. Abudu, 485 U.S. 94, 104-05

(1988). 

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