         09-5114-ag
         Ni v. Holder
                                                                                       BIA
                                                                                Schoppert, IJ
                                                                               A094 787 864
                         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
 4       New York, on the 19th day of October, two thousand ten.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                JOSÉ A. CABRANES,
 9                DENNY CHIN,
10                    Circuit Judges.
11       ______________________________________
12
13       ZHOU TONG NI,
14                Petitioner,
15
16                      v.                                      09-5114-ag
17                                                              NAC
18       ERIC H. HOLDER, JR.,
19       UNITED STATES ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Gary J. Yerman, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; John C. Cunningham, Senior
27                                     Litigation Counsel; John B. Holt,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice, Civil
31                                     Division, 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       Petitioner Zhou Tong Ni, a native and citizen of the

 6   People’s Republic of China, seeks review of a November 17,

 7   2009 decision and order of the BIA affirming the March 3,

 8   2008 order of Immigration Judge (“IJ”) Douglas Schoppert,

 9   denying Ni’s application for asylum, withholding of removal,

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

11   re Zhou Tong Ni, No. A094 787 864 (BIA Nov. 17, 2009), aff’g

12   No. A094 787 864 (Immig. Ct. N.Y. City Mar. 3, 2008).   We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, where “the BIA

16   agrees with the IJ’s conclusion that a petitioner is not

17   credible . . . we review the IJ’s decision including the

18   portions not explicitly discussed by the BIA.”   Yun-Zui Guan

19   v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).   The

20   applicable standards of review are well-established.    See 8

21   U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d

22   162, 167 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d


                                  2
 1   99, 104 (2d Cir. 2008).    Under the REAL ID Act, which

 2   applies to Ni’s application for relief, “an IJ may rely on

 3   any inconsistency or omission in making an adverse

 4   credibility determination as long as the ‘totality of the

 5   circumstances’ establishes that an asylum applicant is not

 6   credible.”    Xiu Xia Lin, 534 F.3d at 167 (emphasis in

 7   original); see In re: J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA

 8   2007) (“[T]he REAL ID Act no longer requires the trier of

 9   fact to find a nexus between inconsistencies and the ‘heart

10   of the claim’”).

11          Substantial evidence supports the agency’s adverse

12   credibility determination.    See Xiu Xia Lin, 534 F.3d at

13   167.    The IJ reasonably found Ni not credible based on:

14   (1) a conflict between (a) Ni’s testimony that he was

15   arrested by five police officers while practicing Falun Gong

16   with six other people inside his parents’ home and (b) his

17   parents’ affidavit, which indicated that they first learned

18   of Ni’s arrest from a third person - indicating that Ni was

19   arrested while practicing Falun Gong at a location other

20   than his parents’ home; (2) both Ni’s and his sister’s

21   inconsistent testimony regarding how Ni obtained his

22   household registration document; (3) Ni’s inconsistent


                                    3
 1   testimony regarding how he obtained his birth certificate;

 2   and (4) Ni’s demeanor.   See Xiu Xia Lin, 534 F.3d at 167;

 3   see also Siewe v. Gonzales, 480 F.3d 160, 169 (2d Cir. 2007)

 4   (according deference to an IJ’s finding “[s]o long as an

 5   inferential leap is tethered to the evidentiary record”).

 6   We further find no error in the IJ’s refusal to credit the

 7   inconsistent explanations Ni offered.   See Majidi v.

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

 9       Moreover, contrary to Ni’s argument, the IJ reasonably

10   refused to accord evidentiary weight to photographs Ni

11   submitted because Ni was unable to identify the other

12   individuals in the photographs and because Ni admitted that

13   the pictures were taken solely for litigation purposes.      See

14   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 324 (2d

15   Cir. 2006) (finding that the weight afforded to the

16   applicant’s evidence in immigration proceedings lies largely

17   within the discretion of the agency).

18       Because Ni’s claims were all based on the same factual

19   predicate, the agency’s adverse credibility determination

20   was a proper basis for denial of his applications for

21   asylum, withholding of removal, and CAT relief.   See Paul v.

22   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).


                                   4
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12
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