         10-1940
         Wang v. Holder
                                                                                       BIA
                                                                                   Chew, IJ
                                                                               A099 938 986
                           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 6th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                ROBERT D. SACK,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       KONG YUAN WANG,
14                Petitioner,
15
16                        v.                                    10-1940
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Kong Yuan Wang, Pro Se, El Monte, CA
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Douglas E. Ginsburg,
27                                     Assistant Director, Karen L. Melnik;
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, United
 1                             States Department of Justice,
 2                             Washington, DC
 3
 4       UPON DUE CONSIDERATION of this petition for review of a

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

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

 7   is DENIED.

 8       Kong Yuan Wang, a native and citizen of the People’s

 9   Republic of China, seeks review of an April 23, 2010,

10   decision of the BIA affirming the May 22, 2008, decision of

11   Immigration Judge (“IJ”) George T. Chew, which denied his

12   application for asylum, withholding of removal, and relief

13   under the Convention Against Torture (“CAT”).     In re Kong

14   Yuan Wang, No. A099 938 986 (B.I.A. Apr. 23, 2010), aff’g

15   No. A099 938 986 (Immig. Ct. N.Y. City, May 22, 2008).      We

16   assume the parties’ familiarity with the underlying facts

17   and procedural history in this case.

18       Under the circumstances of this case we have reviewed

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

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

21   2008).   The applicable standards of review are well-

22   established.     See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia

23   Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).      For

24   asylum applications, like Wang’s, governed by the REAL ID

25   Act, the agency may, “[c]onsidering the totality of the

                                     2
 1   circumstances, . . . base a credibility finding on the . . .

 2   the consistency between the applicant’s or witness’s written

 3   or oral statements, . . . without regard to whether an

 4   inconsistency . . . goes to the heart of the applicant’s

 5   claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

 6   F.3d at 165-66.

 7       Substantial evidence supports the agency’s adverse

 8   credibility determination.     In finding Wang not credible,

 9   the agency reasonably relied on Wang’s omission from his

10   asylum application of any mention of the sole basis of his

11   claim of past persecution, his altercation with family

12   planning officials.     See Xiu Xia Lin, 534 F.3d at 166 n.3

13   (for the purposes of analyzing an adverse credibility

14   determination, “[a]n inconsistency and an omission are . . .

15   functionally equivalent.”).     Both here and before the BIA,

16   Wang explained that he failed to mention the altercation in

17   his original application because he felt that his wife’s

18   forced abortion and sterilization “were more important and

19   more severe.”     The agency was entitled to decline to credit

20   this explanation in light of the timing of Wang’s addendum,

21   which came after our decision in Shi Liang Lin v. U.S. Dep’t

22   of Justice, 494 F.3d 296, 309-10 (2d Cir. 2007) (holding

23   that an individual was not per se eligible for relief based


                                     3
 1   on the forced abortion or sterilization suffered by a

 2   spouse).   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

 3   Cir. 2005) (noting our deference to an IJ’s credibility

 4   determination, unless a reasonable fact-finder would be

 5   compelled to conclude otherwise).    Given the major omission

 6   from the application, the timing of the amendment, and the

 7   agency’s additional findings concerning the similarities in

 8   phrasing between Wang’s and his wife’s statements, as well

 9   as Wang’s wife and her aunt’s omission of any mention of his

10   altercation with family planning officials in their

11   affidavits, the adverse credibility determination is

12   supported by substantial evidence.    See Xiu Xia Lin, 534

13   F.3d at 165-66.

14       Moreover, as the BIA found, even if credible, Wang did

15   not demonstrate harm rising to the level of persecution

16   because he was not eligible for relief based on the harm

17   suffered by his wife, Shi Liang Lin, 494 F.3d at 309, and

18   the single incident with family planning officials in which

19   he was punched in the stomach did not rise to the level of

20   persecution, see Jian Qui Liu v. Holder, 632 F.3d 820, 822

21   (2d Cir. 2011).   Contrary to Wang’s assertion, because his

22   past harm did not rise to the level of persecution, he is

23   not entitled to a presumption of a well-founded fear of

                                   4
 1   persecution.   See 8 C.F.R. § 1208.13(b)(1).   Furthermore,

 2   because Wang was unable to show the objective likelihood of

 3   persecution needed to make out an asylum claim, he was

 4   necessarily unable to meet the higher standard required to

 5   succeed on a claim for withholding of removal.    See Paul v.

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

 7       For the foregoing reasons, the petition for review is

 8   DENIED.   As we have completed our review, the pending motion

 9   for a stay of removal in this petition is DISMISSED as moot.

10                               FOR THE COURT:
11                               Catherine O’Hagan Wolfe, Clerk
12
13




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