09-5155-ag

Wang v. Holder

BIA

Van Wyke, IJ

A096 258 196

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 4th 4 day of February, two thousand eleven.

5

6 PRESENT:

7 ROBERT D. SACK,

8 ROBERT A. KATZMANN,

9 DENNY CHIN,

10 Circuit Judges.

11 _____________________________________

12

13 KE HUI WANG,

14 Petitioner, 

15

16 v. 09-5155-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Michael Brown, New York, New York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Richard M. Evans, Assistant

27 Director; Kevin J. Conway, Attorney,

28 Office of Immigration Litigation,

29 United States Department of Justice,

30 Washington, 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 Ke Hui Wang, a native and citizen of the

6 People’s Republic of China, seeks review of a November 27,

7 2009, order of the BIA, affirming the December 15, 2008,

8 decision of Immigration Judge (“IJ”) William P. Van Wyke,

9 which denied his application for asylum, withholding of

10 removal, and relief under the Convention Against Torture

11 (“CAT”). In re Ke Hui Wang, No. A096 258 196 (B.I.A. Nov.

12 27, 2009), aff’g Nos. A096 258 196 (Immig. Ct. N.Y. City

13 Dec. 15, 2008). We assume the parties’ familiarity with the

14 underlying facts and procedural history in this case. 

15 Under the circumstances of this case, we may consider

16 both the IJ’s and the BIA’s opinions “for the sake of

17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18 2008) (internal quotations omitted). The applicable

19 standards of review are well-established. See Shu Wen Sun

20 v. BIA, 510 F.3d 377, 379 (2d Cir. 2007); Salimatou Bah v.

21 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). We review the

22 agency's factual findings, including adverse credibility

23 findings, under the substantial evidence standard, treating
3

1 them as "conclusive unless any reasonable adjudicator would

2 be compelled to conclude to the contrary." 8 U.S.C. §

3 1252(b)(4)(B); see also Shu Wen Sun, 510 F.3d at 379. We

4 review de novo questions of law and the application of law

5 to undisputed fact. Salimaton Bah, 529 F.3d at 110.

6 As a preliminary matter, Wang does not challenge the

7 agency’s determination that his asylum application was

8 untimely under 8 U.S.C. § 1158(a)(2)(B), and thus he has

9 abandoned that claim. 

10 As to withholding of removal and CAT relief,

11 substantial evidence supports the agency’s adverse

12 credibility determination: (1) Wang's poor demeanor while

13 testifying, (2) two significant inconsistences in his

14 testimony, and (3) his failure to provide a reasonable

15 explanation for his difficulties in testifying. See Shu Wen

16 Sun, 510 F.3d at 379. 

17 A. Demeanor

18 The IJ found Wang not credible, in part because of his

19 demeanor, noting that long pauses preceded some of Wang's

20 answers and that several times he was completely

21 unresponsive. Because the IJ was in the best position to

22 observe Wang’s manner while testifying, we afford his
4

1 demeanor finding particular deference. See Niang v.

2 Mukasey, 511 F.3d 138, 145 (2d Cir. 2007). Moreover, the

3 record supports the IJ’s finding that Wang’s answers were

4 unresponsive on several occasions and that he responded to

5 numerous questions – including such elemental questions as

6 what the Chinese government did to him and his wife – by

7 saying that he did not remember. 

8 B. Inconsistences

9 In finding Wang’s testimony not credible, the agency

10 also reasonably relied on two inconsistencies in his

11 testimony. See Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d

12 Cir. 2007). First, the agency noted that Wang’s testimony

13 was inconsistent as to whether he was detained before or

14 after his wife was discovered by the family planning

15 officials. Wang testified, in conformance with his written

16 statement, that the family planning officials arrested him

17 to make him reveal his wife’s whereabouts because she was in

18 hiding. Wang also testified, however, that he was detained

19 on March 4, 2002, while his written statement indicated that

20 the family planning officials had found his wife on March 3,

21 2002. When asked to explain this inconsistency, Wang

22 replied “I forgot.” 
5

1 Second, the agency noted that Wang’s testimony was

2 inconsistent with respect to the provenance of a hotel

3 receipt dated March 13, 2002, that he submitted in support

4 of his claim that he was still in China at that time. Wang

5 testified that he had given the hotel receipt to his wife in

6 the hotel and that she sent the receipt to him. However,

7 Wang had earlier testified that he had not seen his wife

8 after the abortion, then adding that he saw her only once

9 when she came back from the hospital. When Wang was asked

10 to reconcile his testimony as to whether his wife was with

11 him in the hotel or not, he replied “I cannot remember

12 clear.” 

13 Because these inconsistencies relate to the heart of

14 Wang’s claims, and are substantial when measured against the

15 record as a whole, the agency did not err in finding him not

16 credible. See Wensheng Yan, 509 F.3d at 66. In addition,

17 the agency was entitled to rely on the cumulative effect of

18 the inconsistencies, even if individually they were

19 ancillary to Wang’s claim. See Tu Lin v. Gonzales, 446 F.3d

20 395, 402 (2d Cir. 2006). 

21 C. Absence of Reasonable Explanations

22 Finally, Wang argues that he adequately explained that

23 the pauses in his testimony and his lack of memory were due
6

1 to his lack of education and the stress in his life. The IJ

2 reasonably discounted Wang’s explanations, however, noting

3 that he first testified that his memory problems stemmed

4 from his stressful work schedule but later indicated that

5 his memory had been bad since he was a child. See Majidi v.

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

7 agency need not credit an applicant’s explanations for

8 inconsistent testimony unless those explanations would

9 compel a reasonable fact-finder to do so). The agency did

10 not err in denying Wang’s application for withholding of

11 removal and CAT relief based on its adverse credibility

12 determination, as the claims shared the same factual

13 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

14 2006) (withholding of removal); Xue Hong Yang v. U.S. Dep’t

15 of Justice, 426 F.3d 520, 523 (2d Cir. 2005) (CAT). 

16 For the foregoing reasons, the petition for review is

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

18 removal that the Court previously granted in this petition

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

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

21 oral argument in this petition is DENIED in accordance with
7

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

2 Circuit Local Rule 34.1(b).

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk

5

6