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. 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 4 th** **day of February, two thousand eleven.** 4 5 **PRESENT:** 6 **ROBERT D. SACK,** 7 **ROBERT A. KATZMANN,** 8 **DENNY CHIN,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **KE HUI WANG,** 13 Petitioner**,** 14 15 **v. 09-5155-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Michael Brown, New York, New York.** 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney** 25 **General; Richard M. Evans, Assistant** 26 **Director; Kevin J. Conway, Attorney,** 27 **Office of Immigration Litigation,** 28 **United States Department of Justice,** 29 **Washington, D.C.** 302 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 Ke Hui Wang, a native and citizen of the 5 People’s Republic of China, seeks review of a November 27, 6 2009, order of the BIA, affirming the December 15, 2008, 7 decision of Immigration Judge (“IJ”) William P. Van Wyke, 8 which denied his application for asylum, withholding of 9 removal, and relief under the Convention Against Torture 10 (“CAT”). In re Ke Hui Wang, No. A096 258 196 (B.I.A. Nov. 11 27, 2009), aff’gNos. A096 258 196 (Immig. Ct. N.Y. City 12 Dec. 15, 2008). We assume the parties’ familiarity with the 13 underlying facts and procedural history in this case. 14 Under the circumstances of this case, we may consider 15 both the IJ’s and the BIA’s opinions “for the sake of 16 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 17 2008) (internal quotations omitted). The applicable 18 standards of review are well-established. See Shu Wen Sun 19

v. BIA, 510 F.3d 377, 379 (2d Cir. 2007); Salimatou Bah v. 20 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). We review the 21 agency's factual findings, including adverse credibility 22 findings, under the substantial evidence standard, treating 233 them as "conclusive unless any reasonable adjudicator would 1 be compelled to conclude to the contrary." 8 U.S.C. § 2 1252(b)(4)(B); see also Shu Wen Sun, 510 F.3d at 379. We 3 review de novoquestions of law and the application of law 4 to undisputed fact. Salimaton Bah, 529 F.3d at 110. 5 As a preliminary matter, Wang does not challenge the 6 agency’s determination that his asylum application was 7 untimely under 8 U.S.C. § 1158(a)(2)(B), and thus he has 8 abandoned that claim. 9 As to withholding of removal and CAT relief, 10 substantial evidence supports the agency’s adverse 11 credibility determination: (1) Wang's poor demeanor while 12 testifying, (2) two significant inconsistences in his 13 testimony, and (3) his failure to provide a reasonable 14 explanation for his difficulties in testifying. See Shu Wen 15
Sun, 510 F.3d at 379. 16

**A. Demeanor** 17 The IJ found Wang not credible, in part because of his 18 demeanor, noting that long pauses preceded some of Wang's 19 answers and that several times he was completely 20 unresponsive. Because the IJ was in the best position to 21 observe Wang’s manner while testifying, we afford his 224 demeanor finding particular deference. See Niang v. 1 Mukasey, 511 F.3d 138, 145 (2d Cir. 2007). Moreover, the 2 record supports the IJ’s finding that Wang’s answers were 3 unresponsive on several occasions and that he responded to 4 numerous questions – including such elemental questions as 5 what the Chinese government did to him and his wife – by 6 saying that he did not remember. 7 **B. Inconsistences** 8 In finding Wang’s testimony not credible, the agency 9 also reasonably relied on two inconsistencies in his 10 testimony. See Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d 11 Cir. 2007). First, the agency noted that Wang’s testimony 12 was inconsistent as to whether he was detained before or 13 after his wife was discovered by the family planning 14 officials. Wang testified, in conformance with his written 15 statement, that the family planning officials arrested him 16 to make him reveal his wife’s whereabouts because she was in 17 hiding. Wang also testified, however, that he was detained 18 on March 4, 2002, while his written statement indicated that 19 the family planning officials had found his wife on March 3, 20 2002. When asked to explain this inconsistency, Wang 21 replied “I forgot.” 225 Second, the agency noted that Wang’s testimony was 1 inconsistent with respect to the provenance of a hotel 2 receipt dated March 13, 2002, that he submitted in support 3 of his claim that he was still in China at that time. Wang 4 testified that he had given the hotel receipt to his wife in 5 the hotel and that she sent the receipt to him. However, 6 Wang had earlier testified that he had not seen his wife 7 after the abortion, then adding that he saw her only once 8 when she came back from the hospital. When Wang was asked 9 to reconcile his testimony as to whether his wife was with 10 him in the hotel or not, he replied “I cannot remember 11 clear.” 12 Because these inconsistencies relate to the heart of 13 Wang’s claims, and are substantial when measured against the 14 record as a whole, the agency did not err in finding him not 15 credible. See Wensheng Yan , 509 F.3d at 66. In addition, 16 the agency was entitled to rely on the cumulative effect of 17 the inconsistencies, even if individually they were 18 ancillary to Wang’s claim. See Tu Lin v. Gonzales , 446 F.3d 19 395, 402 (2d Cir. 2006). 20 **C. Absence of Reasonable Explanations** 21 Finally, Wang argues that he adequately explained that 22 the pauses in his testimony and his lack of memory were due 236 to his lack of education and the stress in his life. The IJ 1 reasonably discounted Wang’s explanations, however, noting 2 that he first testified that his memory problems stemmed 3 from his stressful work schedule but later indicated that 4 his memory had been bad since he was a child. See Majidi v. 5 Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that an 6 agency need not credit an applicant’s explanations for 7 inconsistent testimony unless those explanations would 8 compel a reasonable fact-finder to do so). The agency did 9 not err in denying Wang’s application for withholding of 10 removal and CAT relief based on its adverse credibility 11 determination, as the claims shared the same factual 12 predicate. See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 13 2006) (withholding of removal); Xue Hong Yang v. U.S. Dep’t 14 of Justice , 426 F.3d 520, 523 (2d Cir. 2005) (CAT). 15 For the foregoing reasons, the petition for review is 16 DENIED. As we have completed our review, any stay of 17 removal that the Court previously granted in this petition 18 is VACATED, and any pending motion for a stay of removal in 19 this petition is DISMISSED as moot. Any pending request for 20 oral argument in this petition is DENIED in accordance with 217 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 Circuit Local Rule 34.1(b). 2
FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4 5 6