11-1836-ag

Ren v. Holder

BIA

Van Wyke, IJ

A099 525 362

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 5th 4 day of June, two thousand twelve.

5

6 PRESENT:

7 Ralph K. Winter,

8 Reena Raggi, 

9 Susan L. Carney,

10 Circuit Judges. 

11 _______________________________________

12

13 HUA REN,

14 Petitioner, 15

16 v. 11-1836-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent. 21 ______________________________________ 22

23

24 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney General;

27 John S. Hogan, Senior Litigation Counsel;

28 Andrea N. Gevas, Trial Attorney, Office

29 of Immigration Litigation, Civil

30 Division, United States Department of

31 Justice, Washington, D.C.

32
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 Hua Ren, a native and citizen of the

6 People’s Republic of China, seeks review of an April 6, 2011

7 order of the BIA affirming the April 9, 2009 decision of an

8 Immigration Judge (“IJ”) denying Ren’s application for

9 asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Hua Ren, No. A099

11 525 362 (B.I.A. Apr. 6, 2011), aff’g No. A099 525 362

12 (Immig. Ct. N.Y. City Apr. 9, 2009). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case.

15 We have reviewed the IJ’s decision as supplemented by

16 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

17 Cir. 2005). The applicable standards of review are

18 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

19 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). For asylum

20 applications governed by the REAL ID Act, such as Ren’s, the

21 agency may, considering the totality of the circumstances,

22 base a credibility finding on an applicant’s demeanor, the
3

1 plausibility of his account, or inconsistencies in his

2 statements, without regard to whether they go “to the heart

3 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).

4 In this case, the agency found that Ren was not

5 credible. This determination rested in part on the IJ’s

6 finding that Ren’s testimony that he was paid to hand out

7 Falun Gong flyers was not plausible because the work was too

8 dangerous and no country conditions evidence indicated that

9 other individuals were paid to do similar work. Ren argues

10 that this finding was speculative as to how different

11 individuals would respond to the threat of danger, and was

12 not based on the record. See Yuanliang Liu v. U.S. Dep’t of

13 Justice, 455 F.3d 106, 110 (2d Cir. 2006) (concluding that

14 an IJ engaged in impermissible speculation in finding that

15 it was implausible that the applicant’s wife did not take

16 greater precautions to avoid persecution).

17 Even assuming this finding was in error, remand is not

18 necessary as “we can state with confidence that the IJ would

19 adhere to his decision were the petition remanded,” Xiao Ji

20 Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 161 (2d Cir.

21 2006), and there are “ample, error-free grounds that provide

22 substantial evidence to support the IJ’s adverse credibility
4

1 determination,” Singh v. BIA, 438 F.3d 145, 149-50 (2d Cir.

2 2006).

3 The record supports the IJ’s finding that Ren’s

4 unresponsive and evasive manner undermined his credibility. 

5 See Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005). 

6 His adverse credibility finding was further supported by

7 specific examples of inconsistent testimony. See Li Hua Lin

8 v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006). 

9 As the IJ found, Ren gave conflicting testimony about why

10 Chinese authorities investigated him and his girlfriend and

11 whether he lived with his girlfriend. The IJ also noted

12 that Ren’s first asylum application omitted any mention of

13 an alleged physical altercation with family planning

14 officials. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166

15 n.3 (2d Cir. 2008) (providing that for purposes of analyzing

16 a credibility determination, “[a]n inconsistency and an

17 omission are . . . functionally equivalent”).

18 In addition, the IJ reasonably found that Ren’s

19 explanation for how he had submitted an identification card

20 to the court–after testifying that he lost his

21 identification card and that his replacement card was

22 confiscated by the authorities–was implausible because he
5

1 could not explain how his family obtained the card for him

2 while he was in hiding because he was wanted for fighting

3 with family planning officials. See Ming Xia Chen v. BIA,

4 435 F.3d 141, 145 (2d Cir. 2006) (noting that this Court

5 will “uphold a [plausibility] finding unless [it is] left

6 with the definite and firm conviction that a mistake has

7 been committed” (internal quotation marks omitted)).

8 Having found that Ren’s testimony was not credible, the

9 IJ reasonably expected him to present corroborating evidence

10 to rehabilitate it. The agency reasonably noted that Ren

11 failed to provide any evidence from his former girlfriend. 

12 Contrary to Ren’s argument, the BIA was not compelled to

13 conclude that this evidence was unavailable. See 8 U.S.C. §

14 1252(b)(4). 

15 Together, Ren’s demeanor, the inconsistencies in his

16 testimony, the lack of plausible explanation for how his

17 family obtained his identification card, and his failure to

18 provide corroboration reasonably deemed available,

19 constitute substantial evidence in support of the agency’s

20 adverse credibility determination. See 8 U.S.C.

21 § 1158(b)(1)(B)(iii). Accordingly, the agency did not err

22 in concluding that Ren was not eligible for asylum,
6

1 withholding of removal, or CAT relief. See Paul v.

2 Gonzales, 444 F.3d 148, 157 (2d Cir. 2006).

3 For the foregoing reasons, the petition for review is

4 DENIED. As we have completed our review, the pending motion

5 for a stay of removal in this petition is DISMISSED as moot. 

6 Any pending request for oral argument in this petition is

7 DENIED in accordance with Federal Rule of Appellate

8 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

11

12