09-4056-ag

Ke v. Holder

BIA

DeFonzo, IJ

A098 740 697

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

4 New York, on the 28 day of July, two thousand ten. th

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 RICHARD C. WESLEY,

9 DENNY CHIN,

10 Circuit Judges.

11 _______________________________________

12

13 HUANG ZHEN KE, a.k.a. WEN ZHEN KE,

14 Petitioner,

15

16 v. 09-4056-ag

17 NAC

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

19 GENERAL, 

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Feng Li, New York, New York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General, Luis E. Perez, Senior

27 Litigation Counsel, Juria L. Jones,

28 Trial Attorney, Office of

29 Immigration Litigation, Civil

30 Division, United States Department

31 of Justice, Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4 review is DENIED.

5 Petitioner Huang Zhen Ke, a native and citizen of the

6 People’s Republic of China, seeks review of a September 11,

7 2009, order of the BIA affirming the January 16, 2008,

8 decision of Immigration Judge (“IJ”) Paul A. DeFonzo,

9 denying her application for asylum, withholding of removal,

10 and relief under the Convention Against Torture (“CAT”). In

11 re Huang Zhen Ke, No. A098 740 697 (B.I.A. Sept. 11, 2009),

12 aff’g No. A098 740 697 (Immig. Ct. N.Y. City Jan. 16, 2008). 

13 We assume the parties’ familiarity with the underlying facts

14 and procedural history of the case. 

15 Under the circumstances of this case, we review both

16 the IJ’s and the BIA’s opinions. See Wangchuck v. Dep’t of

17 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The

18 applicable standards of review are well-established. See

19 8 U.S.C. § 1252(b)(4)(B); Weng v. Holder, 562 F.3d 510, 513

20 (2d Cir. 2009). 

21 Substantial evidence supports the IJ’s adverse

22 credibility determination. As the IJ noted: (1) although Ke

23 testified that she never practiced Falun Gong in China, a
3

1 letter from her mother stated otherwise; (2) although Ke

2 testified that she was introduced to Falun Gong in June

3 2005, a letter from her friend stated that she was

4 introduced to Falun Gong in August 2005; (3) although Ke

5 testified that she was released from detention because her

6 mother paid the authorities, a letter from her friend stated

7 that she was released because of her poor health;

8 (4) although Ke testified, and stated in her application,

9 that she had been arrested in China, she stated during her

10 airport interview that she had never been arrested; and

11 (5) in her application, Ke provided an address different

12 from the one she claimed to have lived at while in hiding. 

13 Because these discrepancies were based on specific examples

14 in the record, the agency was entitled to rely on these

15 discrepancies to find Ke not credible. See 8 U.S.C.

16 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534

17 F.3d 162, 167 (2d Cir. 2008). Furthermore, the IJ

18 reasonably declined to credit Ke’s explanations, as the

19 explanations were not supported by the record. See Majidi

20 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (emphasizing

21 that the agency need not credit an applicant’s explanations

22 for inconsistent testimony unless those explanations would

23 compel a reasonable fact-finder to do so). 
4

1 Accordingly, considering the totality of the

2 circumstances and all relevant factors, the IJ’s adverse

3 credibility determination was supported by substantial

4 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). As the only

5 evidence of a threat to Ke’s life or freedom depended upon

6 her credibility, the adverse credibility determination in

7 this case necessarily precludes success on her claim for

8 asylum and withholding of removal. See Paul v. Gonzales,

9 444 F.3d 148, 156 (2d Cir. 2006). Ke does not challenge the

10 agency’s denial of her CAT claim in her brief to this Court.

11 For the foregoing reasons, the petition for review is

12 DENIED. As we have completed our review, any stay of

13 removal that the Court previously granted in this petition

14 is VACATED, and any pending motion for a stay of removal in

15 this petition is DISMISSED as moot. Any pending request for

16 oral argument in this petition is DENIED in accordance with

17 Federal Rule of Appellate Procedure 34(a)(2), and Second

18 Circuit Local Rule 34.1(b).

19 FOR THE COURT:

20 Catherine O’Hagan Wolfe, Clerk

21