         11-2761-ag
         Yang v. Holder
                                                                                         BIA
                                                                                  Schoppert, IJ
                                                                                 A089 250 764
                               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 New
 4       York, on the 29th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                REENA RAGGI,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _________________________________________
12
13       ZHONGDIAN YANG,
14                Petitioner,
15
16                        v.                                      11-2761-ag
17                                                                NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:               Michael A.O. Brown, Law Offices of
24                                     Michael Brown, P.C., New York, N.Y.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney General;
27                                     Anthony C. Payne, Senior Litigation
28                                     Counsel; Colette J. Winston, Attorney;
29                                     Office of Immigration Litigation,
30                                     United 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 is

 4   DENIED.

 5       Petitioner Zhongdian Yang, a native and citizen of the

 6   People’s Republic of China, seeks review of a June 30, 2011

 7   decision of the BIA affirming the January 10, 2011 decision of

 8   an Immigration Judge (“IJ”) denying his application for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).     In re Zhongdian Yang, No.

11   A089 250 764 (B.I.A. June 30, 2011), aff’g No. A089 250 764

12   (Immig. Ct. N.Y. City Jan. 10, 2011).    We assume the parties’

13   familiarity with the underlying facts and procedural history

14   of the case.

15       We have considered both the BIA’s opinion and the IJ’s

16   decision.     See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d

17   Cir. 2005).    The applicable standards of review are well

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

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

20       Substantial evidence supports the agency’s determination

21   that Yang did not testify credibly regarding his claim that he

22   had been persecuted in China on the basis of his resistance to


                                      2
 1   China’s coercive family planning policies.   The agency

 2   reasonably relied on inconsistencies in the record.     See

 3   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-

 4   64, 166-67.   As the IJ reasonably found, Yang’s testimony that

 5   he was beaten by family planning officials was inconsistent

 6   with his wife’s letter stating that the officials had

 7   “scolded” him.   Yang argues that his wife’s use of the word

 8   “scolded” can be interpreted to be consistent with his

 9   testimony because “scolded” can encompass a physical beating.

10   This “ex post justification,” however, is not a sufficient

11   basis to overturn the agency’s adverse credibility

12   determination, as it does not compel the conclusion that a

13   reasonable fact-finder would credit Yang’s testimony.     See Wu

14   Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003) (observing

15   that a petitioner must offer more than a “plausible

16   alternative theory” to warrant reversal) (internal quotation

17   marks omitted); Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

18   Cir. 2005).

19       The agency also reasonably relied on Yang’s inconsistent

20   statements regarding whether he fled from the family planning

21   officials after they beat him or whether they simply left.

22   Yang argues that his testimony that his family helped him


                                    3
 1   resist and escape the officials was consistent with his

 2   testimony that the officials beat him.   This argument,

 3   however, fails to account for the fact that Yang also

 4   testified that they simply left after beating him and warning

 5   him to comply with family planning policies.

 6       Finally, Yang argues that, because the inconsistencies do

 7   not go to the heart of his claim for relief, they do not

 8   support the adverse credibility determination.     We disagree

 9   for two reasons.   First, Yang’s claim is based on his

10   purported resistance to the coercive family planning policies,

11   and the inconsistencies identified by the agency involve the

12   central facts comprising that resistance.     Second, Yang’s

13   application is governed by the REAL ID Act, and the agency

14   properly based its adverse credibility determination on

15   inconsistencies in Yang’s statement and testimony, without

16   regard to whether those inconsistencies went “to the heart of

17   [Yang’s] claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

18   534 F.3d at 163-64.   The inconsistencies identified by the

19   agency provided substantial evidence in support of the

20   agency’s adverse credibility determination.     See 8 U.S.C. §

21   1158(b)(1)(B)(iii).   Accordingly, the agency did not err in

22   denying Yang’s claims for asylum, withholding of removal, and


                                    4
 1   CAT relief insofar as those claims were based on his

 2   resistance to China’s coercive family planning policies.     See

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

 4       For the foregoing reasons, the petition for review is

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

 6   that the Court previously granted in this petition is VACATED,

 7   and petitioner’s pending motion for a stay of removal in this

 8   petition is DISMISSED as moot.

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

11




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