09-2362-ag

Wang v. Holder

BIA

Balasquide, IJ

A090 347 355

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 Daniel Patrick Moynihan

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

New York, on the 16 day of June, two thousand ten. th

PRESENT:

RALPH K. WINTER,

JOSÉ A. CABRANES,

PETER W. HALL,

 Circuit Judges.

_______________________________________

YONG FU WANG,

Petitioner, 

 v. 09-2362-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Sheema Chaudhry, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Mary Jane Candaux,

Assistant Director; Todd J. Cochran,

Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.
2

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.

Yong Fu Wang, a native and citizen of the People’s

Republic of China, seeks review of a May 7, 2009, order of

the BIA affirming the June 18, 2007, decision of Immigration

Judge (“IJ”) Javier Balasquide, which denied his application

for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Yong Fu Wang, No.

A090 347 355 (B.I.A. May 7, 2009), aff’g No. A090 347 355

(Immig. Ct. N.Y. City June 18, 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

IJ’s decision as modified and supplemented by the BIA’s

decision. See Xue Hong Yang v. U.S. Dep’t of Justice, 426

F.3d 520, 522 (2d Cir. 2005); see also 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); see also Xiu Xia Lin v. Mukasey, 534 F.3d

162, 165-66 (2d Cir. 2008).

For asylum applications governed by the REAL ID Act,

the agency may, considering the totality of the

circumstances, base a credibility finding on an asylum

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

plausibility of his or her account, and inconsistencies in

his or her 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); Xiu Xia Lin, 534 F.3d at 167. Here,

substantial evidence supports the agency’s adverse

credibility determination. We defer to the IJ’s finding

that Wang’s unresponsive demeanor during cross-examination

undermined his credibility. See Majidi v. Gonzales, 430

F.3d 77, 81 n.1 (2d Cir. 2005); see also Shu Wen Sun v.

Board of Immigration Appeals, 510 F.3d 377, 380-81 (2d Cir.

2007). 

We also find no error in the IJ’s reliance on Wang’s

inconsistent testimony regarding the date on which he was

married. Nor was it error to rely on the inconsistency
3

between Chen’s testimony that he decided to leave China in

December 2004 and the affidavits from his wife and motherin-law, which indicate that he made this decision in

December 2005, shortly after his wife’s alleged forced

abortion. Such were proper bases for an adverse credibility

determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

Lin, 534 F.3d at 167. To the extent that Wang offered

explanations for these discrepancies, the IJ was not

compelled to credit them. See Majidi, 430 F.3d at 80-81.

Finally, Wang does not challenge the agency’s denial of

his withholding of removal or CAT claims before this Court. 

Even assuming that Wang’s challenge to the IJ’s adverse

credibility determination suffices to challenge the agency’s

denial of his applications for each form of relief, that

determination undermines each claim to the extent they were

based on the same factual predicate. See Paul v. Gonzales,

444 F.3d 148, 156-57 (2d Cir. 2006); Xue Hong Yang v. U.S.

Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

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