         12-5013
         Yang v. Holder
                                                                                       BIA
                                                                                  Phelps, IJ
                                                                               A087 537 463
                           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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 30th day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       LIN JIA YANG,
14                Petitioner,
15
16                        v.                                    12-5013
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Michael Brown, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Linda S. Wernery,
27                                     Assistant Director; Susan B. Green,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 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       Lin Jia Yang, a native and citizen of the People’s

 6   Republic of China, seeks review of a December 7, 2012,

 7   decision of the BIA affirming the April 28, 2011, decision

 8   of Immigration Judge (“IJ”) Richard A. Phelps, which denied

 9   his application for asylum, withholding of removal, and

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

11   Lin Jia Yang, No. A087 537 463 (B.I.A. Dec. 7, 2012), aff’g

12   No. A087 537 463 (Immig. Ct. N.Y. City Apr. 28, 2011).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the decisions of both the IJ and the BIA.   See Yun-Zui Guan

17   v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).

18   The applicable standards of review are well-established.

19   See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

20   Mukasey, 534 F.3d 162, 165-67 (2d Cir. 2008) (per curiam).

21       For applications such as Yang’s, governed by the

22   amendments made to the Immigration and Nationality Act by

23   the REAL ID Act of 2005, the agency may, “[c]onsidering the

                                  2
 1   totality of the circumstances,” base a credibility finding

 2   on the plausibility of an applicant’s account, as well as

 3   inconsistencies in his statements, without regard to whether

 4   they go “to the heart of the applicant’s claim.”      8 U.S.C.

 5   §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see Xiu Xia Lin, 534

 6   F.3d at 167.   We “defer [ ] to an IJ’s credibility

 7   determination unless, from the totality of the

 8   circumstances, it is plain that no reasonable fact-finder

 9   could make such an adverse credibility ruling.”    Xiu Xia

10   Lin, 534 F.3d at 167.   As discussed below, the agency

11   reasonably based its adverse credibility finding on the

12   inconsistencies among Yang’s testimony and evidence

13   concerning the dates of his alleged beating and attempted

14   arrest.

15       In finding Yang not credible, the agency reasonably

16   relied on the discrepancies between his testimony and the

17   record evidence regarding the years in which: (1) village

18   cadres allegedly detained, beat, and tortured him; and

19   (2) police officers attempted to arrest him for promoting

20   Falun Gong at his friend’s book stand.   See 8 U.S.C.

21   § 1158(b)(1)(B)(iii).   While Yang contends that these

22   inconsistencies were minor, the IJ reasonably found that

23   they were significant because they related to the two

                                   3
 1   seminal events underlying Yang’s claim and, as such, the

 2   totality of the circumstances do not suggest that “no

 3   reasonable fact-finder could make such an adverse

 4   credibility ruling.”   Xiu Xia Lin, 534 F.3d at 167.

 5       Contrary to Yang’s assertions, the agency did not

 6   ignore any of his corroborating evidence.   See Xiao Ji Chen

 7   v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir.

 8   2006) (noting that the agency is presumed to have “taken

 9   into account all of the evidence before [it], unless the

10   record compellingly suggests otherwise”).   Although Yang

11   faults the IJ for failing to explicitly discuss each of his

12   evidentiary submissions on the record, the agency is not

13   required to “expressly parse or refute on the record each

14   and every one of a petitioner's purported explanations for

15   testimonial inconsistencies or evidentiary gaps.”      Id.

16   Moreover, the agency explicitly addressed Yang’s friend’s

17   affidavit and found that it was inconsistent with Yang’s

18   testimony with respect to the dates of his beating and

19   attempted arrest and, therefore, did not corroborate his

20   claim.   See id. at 342 (stating that generally the weight

21   afforded to a petitioner’s evidence lies largely within the

22   discretion of the agency).   Accordingly, the record does not

23   compellingly suggest that the agency ignored Yang’s

24   corroborating evidence.   See id. at 336 n.17.

                                   4
 1       Given the inconsistencies in Yang’s testimony and

 2   between his testimony and corroborating evidence, the

 3   totality of the circumstances supports the agency’s adverse

 4   credibility determination.    See 8 U.S.C.

 5   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

 6   Moreover, the agency’s adverse credibility determination

 7   necessarily precluded Yang’s success on his claims for

 8   asylum, withholding of removal, and CAT relief, as those

 9   claims shared the same factual predicate.    See Paul v.

10   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.

11   U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2006).

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

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

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

17   oral argument in this petition is DENIED in accordance with

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

19   Circuit Local Rule 34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk




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