         13-2127
         Yu v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A071 638 210
                              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 28th day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                       JON O. NEWMAN,
 8                       DENNIS JACOBS,
 9                       PIERRE N. LEVAL,
10                            Circuit Judges.
11
12       _____________________________________
13
14       CHI XIN YU,
15                Petitioner,
16
17                       v.                                     13-2127
18                                                              NAC
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _____________________________________
24
25       FOR PETITIONER:               Gerald Karikari, New York, New York.
26
27       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney

         07162014-B1-4
 1                             General; Cindy S. Ferrier, Assistant
 2                             Director; Michele Y. F. Sarko,
 3                             Attorney, Office of Immigration
 4                             Litigation, United States Department
 5                             of Justice, Washington, D.C.
 6
 7           UPON DUE CONSIDERATION of this petition for review of a

 8   Board of Immigration Appeals (“BIA”) decision, it is hereby

 9   ORDERED, ADJUDGED, AND DECREED that the petition for review

10   is DENIED.

11           Petitioner Chi Xin Yu, a native and citizen of the

12   People’s Republic of China, seeks review of a May 2, 2013,

13   decision of the BIA, affirming the October 6, 2010, decision

14   of Immigration Judge (“IJ”) Barbara Nelson, denying his

15   application for asylum, withholding of removal, and relief

16   under the Convention Against Torture (“CAT”).     In re Chi Xin

17   Yu, No. A071 638 210 (B.I.A. May 2, 2013), aff’g No. A071

18   638 210 (Immig. Ct. N.Y. City Oct. 6, 2010).     We assume the

19   parties’ familiarity with the underlying facts and

20   procedural history of this case.

21           Under the circumstances of this case, we have reviewed

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

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

24   2008) (quotation marks and citations omitted).     The

25   applicable standards of review are well established.     See


     07162014-B1-4                   2
 1   8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey,

 2   546 F.3d 138, 157-58 (2d Cir. 2008); Secaida-Rosales v. INS,

 3   331 F.3d 297, 307 (2d Cir. 2003), superseded by statute,

 4   REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, as

 5   recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64

 6   (2d Cir. 2008).

 7   I.      Past Persecution

 8           In pre-REAL ID Act cases, such as this case, an adverse

 9   credibility determination must be based on “specific, cogent

10   reasons” that “bear a legitimate nexus to the finding,” and

11   any discrepancy must be “substantial” when measured against

12   the record as a whole.     See Secaida-Rosales, 331 F.3d at 307

13   (internal quotation marks and citations omitted).

14   Substantial evidence supports the agency’s determination

15   that Yu was not credible as to his claim that family

16   planning officials had forced his ex-wife to terminate a

17   pregnancy and had fined and detained him on account of that

18   pregnancy.

19           Yu omitted from his original asylum application his

20   alleged detention despite a question explicitly asking him

21   to indicate whether he had ever been detained.     See Liang

22   Chen v. U.S. Attorney Gen., 454 F.3d 103, 106-07 (2d Cir.


     07162014-B1-4                   3
 1   2006); see also Xiu Xia Lin, 534 F.3d at 166 n.3 (“[a]n

 2   inconsistency and an omission are . . . functionally

 3   equivalent.”).     Yu did not provide a compelling explanation

 4   for this omission.     See Majidi v. Gonzales, 430 F.3d 77, 80

 5   (2d Cir. 2005).     Moreover, as the agency noted, Yu had

 6   reason to later embellish his claim to include a detention

 7   under China’s coercive population control policy.     Prior to

 8   Yu’s submission of an amended application, we issued our

 9   decision in Shi Liang Lin v. U.S. Department of Justice, 494

10   F.3d 296 (2d Cir. 2007), under which he was no longer per se

11   eligible for relief solely based on his spouse’s purported

12   forced procedure.

13           Given the material omission from Yu’s application,

14   coupled with the timing of his amended application following

15   the Shi Liang Lin decision, the agency reasonably found him

16   not credible as to his claim of past persecution.     See

17   Secaida-Rosales, 331 F.3d at 307-08; see also Liang Chen,

18   454 F.3d at 106-07.

19   II. Well-Founded Fear of Persecution

20           For largely the same reasons as this Court set forth in

21   Jian Hui Shao, 546 F.3d 138, we find no error in the

22   agency’s determination that Yu failed to demonstrate his


     07162014-B1-4                   4
 1   eligibility for relief based on his fear of future

 2   persecution for his alleged violation of China’s population

 3   control program.         See id. at 158-72.

 4          For the foregoing reasons, the petition for review is

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

 6   removal that the Court previously granted in this petition

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

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

 9   oral argument in this petition is DENIED in accordance with

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

11   Circuit Local Rule 34.1(b).

12                                     FOR THE COURT:
13                                     Catherine O’Hagan Wolfe, Clerk
14
15




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