12-4220

Wu v. Holder

BIA

Wright, IJ

A087 638 548

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.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 7th day of May, two thousand fourteen.

PRESENT:

JOSÉ A. CABRANES,

SUSAN L. CARNEY,

CHRISTOPHER F. DRONEY,

Circuit Judges. 

_____________________________________

GUIYOU WU,

Petitioner, 

 v. 12-4220

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

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

York.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; William C.

Peachey, Assistant Director; Lindsay

Corliss, Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.
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.

Guiyou Wu, a native and citizen of the People’s

Republic of China, seeks review of an October 9, 2012

decision of the BIA affirming the April 7, 2011 decision of

Immigration Judge (“IJ”) Virna A. Wright, which denied his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Guiyou

Wu, No. A087 638 548 (B.I.A. Oct. 9, 2012), aff’g No. A087

638 548 (Immig. Ct. N.Y. City April 7, 2011). We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

Under the circumstances of this case, we have reviewed

the decision of the IJ as supplemented and modified by the

BIA, including the portions not explicitly discussed by the

BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d

Cir. 2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

520, 522 (2d Cir. 2005). The applicable standards of review

are well established. See 8 U.S.C. § 1252(b)(4)(B); see

also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.

2009). For applications such as Wu’s, governed by the

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amendments made to the Immigration and Nationality Act by

the REAL ID Act of 2005, the agency may, “[c]onsidering the

totality of the circumstances,” base a credibility finding

on the applicant’s “demeanor, candor, or responsiveness,”

the plausibility of his account, and inconsistencies in his

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

of the applicant’s claim.” See 8 U.S.C.

§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin v.

Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam). We

will “defer to an IJ’s credibility determination unless,

from the totality of the circumstances, it is plain that no

reasonable fact-finder could make” such a ruling. Xiu Xia

Lin, 534 F.3d at 167. 

Here, while the IJ’s decision is flawed in some

respects, the adverse credibility determination is

nevertheless supported by substantial evidence. The IJ

rested her negative credibility finding on the following

inconsistencies and omissions: (1) Wu’s testimony that a

staff meeting during which he delivered a speech against his

corrupt employers was organized by his work unit’s

leadership and the city, although in his application he did

not mention the city’s involvement; (2) Wu’s failure to

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testify during direct examination that (a) in addition to

slapping his face, his interrogators kicked him, and that

(b) the police required him to report periodically after his

release from detention; and (3) Wu’s omission from his

asylum application of any mention of the sign posted by his

employers giving notice that he had been fired, or of the

attacks he suffered at the hands of fellow detainees. 

Regarding the staff meeting, Wu consistently identified

his employer as state-owned and asserted that his anticorruption speech attacked both his leaders and, more

broadly, the corruption in China’s Communist Party. 

Therefore, his testimony that the meeting was called by his

work unit and the unit’s related governmental bureau is

consistent with his application’s statement that the factory

leaders called the meeting. Moreover, given Wu’s repeated

testimony that he was fired by his employer in retaliation

for his speech and that his employer always posted a notice

of termination, the IJ may have unreasonably rejected Wu’s

explanation for omitting mention of that notice—that it was

a redundant detail. See Majidi v. Gonzales, 430 F.3d 77,

80-81 (2d Cir. 2005). 

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Nevertheless, the IJ’s adverse credibility

determination is sufficiently supported by the remaining

omissions. Despite Wu’s arguments that the IJ should not

have relied on those omissions because (according to Wu)

they were minor and immaterial to his claim for relief, the

IJ may consider any omissions, material or not, see Xiu Xia

Lin, 534 F.3d at 167, and is not required to accept

explanations for those omissions unless a reasonable fact

finder would be compelled to do so, see Majidi, 430 F.3d at

80-81. Moreover, the IJ was entitled to rely on the

cumulative effect of the omissions. See Tu Lin v. Gonzales,

446 F.3d 395, 402 (2d Cir. 2006). 

Ultimately, the totality of the circumstances supports

the IJ’s adverse credibility determination. See 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because

the strength of the only evidence of a threat to Wu’s life

or freedom depended upon his credibility, the adverse

credibility determination in this case necessarily precludes 

Wu’s success on his claims for withholding of removal and

CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d

Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, Petitioner’s

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motion for a stay of removal in this petition is DISMISSED

as moot and his pending request for oral argument 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

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