09-4923-ag Fan v. Holder BIA Abrams, IJ A094 917 763 

### 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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 24 th** **day of February, two thousand eleven.** 4 5 **PRESENT:** 6 **ROSEMARY S. POOLER,** 7 **ROBERT D. SACK,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **WU FAN,** 13 Petitioner**,** 14 15 **v. 09-4923-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., U.S. ATTORNEY** 18 **GENERAL,** 19 Respondent**.** 20

**______________________________________** 21 22 **FOR PETITIONER: Wu Fang,** pro se**, New York, NY.** 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney** 25 **General; Russell J.E. Verby, Senior** 26 **Litigation Counsel; Terri León** 27 **Benner, Trial Attorney, Office of** 28 **Immigration Litigation, U.S.** 29 **Department of Justice, Washington** 30 **D.C.** 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Wu Fan, a native and citizen of the People’s 5 Republic of China, seeks review of the October 28, 2009, 6 order of the BIA affirming the January 17, 2008, decision of 7 Immigration Judge (“IJ”) Steven R. Abrams denying his 8 application for asylum, withholding of removal, and relief 9 under the Convention Against Torture (“CAT”). In re Wu Fan, 10 No. A094 917 763 (B.I.A. Oct. 28, 2009), aff’gNo. A094 917 11 763 (Immig. Ct. N.Y. City Jan. 17, 2008). We assume the 12 parties’ familiarity with the underlying facts and 13 procedural history in this case. 14 Under the circumstances of this case, we review both 15 the BIA’s and the IJ’s decisions including the portions of 16 the IJ’s decision not explicitly discussed by the BIA. See 17 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). 18 The applicable standards of review are well-established. 19
See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519, F.3d 20 90, 95 (2d Cir. 2008). 213 The agency’s adverse credibility determination is based 1 on what we conclude is substantial evidence in light of the 2 inconsistencies in Wu Fan’s testimony, inconsistencies 3 between his testimony and his asylum application, and 4 inconsistencies between his testimony and that of his sister 5 regarding his whereabouts in China prior to his departure 6 during the time he claimed to distribute Falun Gong 7 materials, his mother’s need for medical treatment, which he 8 claimed caused him to distribute Falun Gong materials for 9 money, and where and when he claims to practice Falun Gong 10 in the United States. See 8 U.S.C. § 1158(b)(1)(B)(iii) 11 (providing that an adverse credibility determination may be 12 based on “the consistency between the applicant’s or 13 witness’s written and oral statements . . ., the internal 14 consistency of each such statement, the consistency of such 15 statements with other evidence of record . . ., and any 16 inaccuracies or falsehoods in such statements, without 17 regard to whether an inconsistency goes to the heart of the 18 applicant’s claim.”). 19 Although Wu Fan now attempts to explain why he and his 20 sister testified that he practiced Falun Gong at different 21 times of the day and why his sister first testified that she 224 saw him practice at a particular location and then testified 1 that she did not, the record supports the agency’s findings 2 that these were in fact inconsistencies. See Xiao Ji Chen 3 v. U.S. Dep’t of Justice , 471 F.3d 338, 342 (2d Cir. 2006). 4 Neither Wu Fan nor his sister offered these explanations to 5 the agency, even though the inconsistencies were self6 evident. 7 In addition to his challenge to the adverse credibility 8 determination, Wu Fan claims that the agency erred in 9 finding that he had not suffered past persecution on account 10 of a protected ground. However, the agency did not make any 11 determination regarding a lack of a nexus to a protected 12 ground. It determined instead that the harm he claimed to 13 have suffered did not rise to the level of persecution 14 because the only harm he claimed was that the police were 15 looking for him. This allegation of harm is insufficient to 16 constitute a claim of persecution. See Ivanishvili v. U.S. 17 Dep’t of Justice , 433 F.3d 332, 341 (2d Cir. 2006); Matter 18 of Acosta , 19 I. & N. Dec. 211, 216 (BIA 1985). 19 Finally, because the factual predicate of Wu Fan’s 20 claim of future persecution and torture, namely his alleged 21 distribution of Falun Gong materials in China and his 22 alleged current practice of Falun Gong in the United States, 235 is dependent on the testimony properly found not to be 1 credible, the agency reasonably denied withholding of 2 removal and CAT relief. 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

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FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9 10 11 12 13 14