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.

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 24th 4 day of February, two thousand eleven.

5

6 PRESENT:

7 ROSEMARY S. POOLER,

8 ROBERT D. SACK,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges. 

11 _______________________________________

12

13 WU FAN,

14 Petitioner, 

15

16 v. 09-4923-ag

17 NAC 

18 ERIC H. HOLDER, JR., U.S. ATTORNEY 

19 GENERAL,

20 Respondent.

21 ______________________________________ 22

23 FOR PETITIONER: Wu Fang, pro se, New York, NY.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Russell J.E. Verby, Senior

27 Litigation Counsel; Terri León28 Benner, Trial Attorney, Office of

29 Immigration Litigation, U.S.

30 Department of Justice, Washington

31 D.C.
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 Wu Fan, a native and citizen of the People’s

6 Republic of China, seeks review of the October 28, 2009,

7 order of the BIA affirming the January 17, 2008, decision of

8 Immigration Judge (“IJ”) Steven R. Abrams denying his

9 application for asylum, withholding of removal, and relief

10 under the Convention Against Torture (“CAT”). In re Wu Fan,

11 No. A094 917 763 (B.I.A. Oct. 28, 2009), aff’g No. A094 917

12 763 (Immig. Ct. N.Y. City Jan. 17, 2008). We assume the

13 parties’ familiarity with the underlying facts and

14 procedural history in this case.

15 Under the circumstances of this case, we review both

16 the BIA’s and the IJ’s decisions including the portions of

17 the IJ’s decision not explicitly discussed by the BIA. See

18 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). 

19 The applicable standards of review are well-established. 

20 See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519, F.3d

21 90, 95 (2d Cir. 2008).
3

1 The agency’s adverse credibility determination is based

2 on what we conclude is substantial evidence in light of the

3 inconsistencies in Wu Fan’s testimony, inconsistencies

4 between his testimony and his asylum application, and

5 inconsistencies between his testimony and that of his sister

6 regarding his whereabouts in China prior to his departure

7 during the time he claimed to distribute Falun Gong

8 materials, his mother’s need for medical treatment, which he

9 claimed caused him to distribute Falun Gong materials for

10 money, and where and when he claims to practice Falun Gong

11 in the United States. See 8 U.S.C. § 1158(b)(1)(B)(iii)

12 (providing that an adverse credibility determination may be

13 based on “the consistency between the applicant’s or

14 witness’s written and oral statements . . ., the internal

15 consistency of each such statement, the consistency of such

16 statements with other evidence of record . . ., and any

17 inaccuracies or falsehoods in such statements, without

18 regard to whether an inconsistency goes to the heart of the

19 applicant’s claim.”).

20 Although Wu Fan now attempts to explain why he and his

21 sister testified that he practiced Falun Gong at different

22 times of the day and why his sister first testified that she
4

1 saw him practice at a particular location and then testified

2 that she did not, the record supports the agency’s findings

3 that these were in fact inconsistencies. See Xiao Ji Chen

4 v. U.S. Dep’t of Justice, 471 F.3d 338, 342 (2d Cir. 2006). 

5 Neither Wu Fan nor his sister offered these explanations to

6 the agency, even though the inconsistencies were self7 evident. 

8 In addition to his challenge to the adverse credibility

9 determination, Wu Fan claims that the agency erred in

10 finding that he had not suffered past persecution on account

11 of a protected ground. However, the agency did not make any

12 determination regarding a lack of a nexus to a protected

13 ground. It determined instead that the harm he claimed to

14 have suffered did not rise to the level of persecution

15 because the only harm he claimed was that the police were

16 looking for him. This allegation of harm is insufficient to

17 constitute a claim of persecution. See Ivanishvili v. U.S.

18 Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006); Matter

19 of Acosta, 19 I. & N. Dec. 211, 216 (BIA 1985).

20 Finally, because the factual predicate of Wu Fan’s

21 claim of future persecution and torture, namely his alleged

22 distribution of Falun Gong materials in China and his

23 alleged current practice of Falun Gong in the United States,
5

1 is dependent on the testimony properly found not to be

2 credible, the agency reasonably denied withholding of

3 removal and CAT relief. 

4 For the foregoing reasons, the petition for review is

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

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

7

8 FOR THE COURT: 

9 Catherine O’Hagan Wolfe, Clerk

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