08-1100-ag

Yang v. Holder

BIA

Burr, IJ

A096 401 441

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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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 17 day of September, two thousand ten. th

PRESENT:

GUIDO CALABRESI,

ROBERT A. KATZMANN,

REENA RAGGI,

 Circuit Judges. 

_____________________________________

_______________________________________

YU FANG YANG,

Petitioner, 

 v. 08-1100-ag

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_______________________________________

FOR PETITIONER: Feng Li, Law Office of Fengling Liu,

New York, N.Y.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Linda S. Wernery, Assistant

Director; Erica B. Miles, 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.

Yu Fang Yang, a native and citizen of the People’s

Republic of China, seeks review of a February 7, 2008, order

of the BIA, affirming the March 28, 2006, decision of

Immigration Judge (“IJ”) Sarah M. Burr, which denied her

application for asylum, withholding of removal, and relief

under the Convention Against Torture. In re Yu Fang Yang,

No. A096 401 441 (B.I.A. Feb. 7, 2008), aff’g No. A096 401

441 (Immig. Ct. N.Y. City Mar. 28, 2006). We assume the

parties’ familiarity with the underlying facts and

procedural history in this case. 

Where, as here, the BIA agreed with the IJ’s conclusion

that Yang was not credible and emphasized particular aspects

of the IJ’s decision, we review both the BIA’s and the IJ’s

opinions. See Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d

Cir. 2006). We review the agency’s factual findings,

including adverse credibility determinations, under the

substantial evidence standard, upholding them if they are

supported by “reasonable, substantial and probative evidence
3

in the record.” Yanqin Weng v. Holder, 562 F.3d 510, 513

(2d Cir. 2009) (internal quotation marks omitted); see 8

U.S.C. § 1252(b)(4)(B). Under the REAL ID Act, which

applies in this case, “an IJ may rely on any inconsistency

or omission in making an adverse credibility determination

as long as the ‘totality of the circumstances’ establishes

that an asylum applicant is not credible.” Xiu Xia Lin v.

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

Analyzed under the REAL ID Act, the agency’s adverse

credibility determination is supported by substantial

evidence. In finding Yang not credible, the agency

reasonably relied on the fact that she admitted before the

IJ that she lied under oath during her airport and credible

fear interviews, giving an entirely different account of her

persecution than the account she presented to the IJ. “The

INS may rely on airport statements in judging an asylum

applicant’s credibility if the record of the interview

indicates that it presents an accurate record of the alien’s

statements, and that it was not conducted under coercive or

misleading circumstances.” Ramsameachire v. Ashcroft, 357

F.3d 169, 179-81 (2d Cir. 2004)

Here, the IJ adequately assessed the probative value of
4

the credible fear interview, in particular noting that it

was conducted under oath six days after Yang arrived, was

preceded by a full explanation of the purpose of the

interview, and gave her ample opportunity to explain why she

came to the United States. Accordingly, the agency did not

err in relying on the airport and credible fear interviews

in concluding that Yang’s testimony was not credible. See

Yun-Zui Guan v. Gonzales, 432 F.3d 391, 398 (2d Cir. 2005)

(holding that where a petitioner provides two entirely

different accounts of persecution, an IJ must “rely on the

commonsense observation that it is inconsistent for a

petitioner to respond to the same question about the nature

of [her] asylum claim with two entirely different

responses”). 

Before the IJ, Yang explained that she lied during her

airport and credible fear interviews because the smuggler

instructed her to do so. Although Yang provided this

explanation, having assessed the probative value of the

credible fear interview, the IJ did not err in finding this

explanation inadequate. See Yun-Zui Guan, 432 F.3d at 396,

397 n.6, 399 n.8 (holding that so long as the IJ

acknowledges and evaluates the petitioner’s explanation for
5

the inconsistency, the IJ may rely on the airport interview

in making an adverse credibility finding); Majidi v.

Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that a

petitioner must do more than offer a plausible explanation

for her inconsistent statements to secure relief; she “must

demonstrate that a reasonable fact-finder would be compelled

to credit [her] testimony”) (internal quotation marks

omitted). 

Because the agency’s adverse credibility determination,

based on Yang’s admission that she lied during her airport

and credible fear interviews, was not in error, we need not

reach the balance of the IJ’s credibility findings. See

Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d

Cir. 2006). Further, because the agency’s adverse

credibility determination is supported by substantial

evidence, Yang did not establish that she suffered past

persecution, and is not entitled to a rebuttable presumption

of future persecution. See 8 C.F.R. §§ 208.13(b)(1),

1208.16(b)(1). As Yang’s application for asylum and 

withholding of removal shared the same factual predicate,

the agency’s adverse credibility determination was fatal to

both of those claims as well. See Paul v. Gonzales, 444

F.3d 148, 156 (2d Cir. 2006). 
6

For the foregoing reasons, the petition for review is

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

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

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk