         10-2708-ag                                                                     BIA
         Ou v. Holder                                                              Ferris, IJ
                                                                               A096 401 483



                          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 27th day of September, two thousand eleven.
 5
 6       PRESENT:
 7                      JOSEPH M. MCLAUGHLIN,
 8                      GUIDO CALABRESI,
 9                      RICHARD C. WESLEY,
10
11                        Circuit Judges.
12       _______________________________________
13
14       Wen Bin Ou,
15                Petitioner,
16
17                       v.                                     10-2708-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Dehai Zhang, Flushing, New York
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Jennifer Williams, Senior
28                                     Litigation Counsel; Lance L. Jolley,
29                                     Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
33
 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       Wen Bin Ou, a native and citizen of China, seeks review

 6   of a June 16, 2010, decision of the BIA affirming the July

 7   30, 2008, decision of Immigration Judge (“IJ”) Noel A.

 8   Ferris, which denied his application for relief under the

 9   Convention Against Torture (“CAT”).     In re Wen Bin Ou, No.

10   A096 401 483 (B.I.A. June 16, 2010), aff’g No. A096 401 483

11   (Immig. Ct. N.Y. City July 30, 2008).    We assume the

12   parties’ familiarity with the underlying facts and

13   procedural history in this case.

14       Under the circumstances of this case, we review the

15   decision of the IJ as supplemented by the BIA.     See Yan Chen

16   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The

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

18   U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

19   F.3d 510, 513 (2d Cir. 2009).

20       For asylum applications governed by the amendments made

21   to the Immigration and Nationality Act by the REAL ID Act of

22   2005, the agency may, considering the totality of the

23   circumstances, base a credibility finding on an asylum

                                     2
 1   applicant’s “demeanor, candor, or responsiveness,” the

 2   plausibility of his or her account, and inconsistencies in

 3   his or her statements, without regard to whether they go “to

 4   the heart of the applicant’s claim.”     See 8 U.S.C.

 5   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

 6   167 (2d Cir. 2008).   We will “defer therefore to an IJ’s

 7   credibility determination unless, from the totality of the

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

 9   could make” such a ruling.     Xiu Xia Lin,   534 F.3d at 167.

10       In this case, the IJ’s adverse credibility

11   determination was not supported by substantial evidence

12   because the IJ relied solely on Ou’s demeanor as evidence of

13   his lack of credibility.     Although we generally afford

14   particular deference to the IJ’s assessment of an

15   applicant’s demeanor, we have never held that a demeanor

16   finding alone can constitute substantial evidence in support

17   of an adverse credibility determination.      See Li Hua Lin v.

18   U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006)

19   (noting that “[w]e can be . . . more confident in our review

20   of observations about an applicant’s demeanor where . . .

21   they are supported by specific examples of inconsistent

22   testimony”); see also Ramsameachire v. Ashcroft, 357 F.3d


                                     3
 1   169, 177-78 (2d Cir. 2004) (“Although credibility

 2   determinations are entitled to the same deference on review

 3   as other factual determinations, the fact that the BIA has

 4   relied primarily on credibility grounds . . . cannot

 5   insulate the decision from review.”).   Here, the IJ failed

 6   to pinpoint a single discrepancy, inconsistency, or omission

 7   to support the adverse credibility finding.

 8       Remand, however, would be futile in this case and is

 9   not required because the agency’s alternative finding - that

10   Ou failed to meet his burden of proof for CAT relief - is

11   supported by substantial evidence.   See Xiao Ji Chen v. U.S.

12   Dep’t of Justice, 471 F.3d 315, 338 (2d Cir. 2006) (remand

13   is futile where “it is clear that the agency would adhere to

14   its prior decision in the absence of error”).

15       The agency did not err in finding that Ou failed to

16   establish his eligibility for CAT relief because he did not

17   present any evidence indicating that it was more likely than

18   not that he would be tortured either by, or with the

19   acquiescence of, the Chinese government if he returned to

20   China.   See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44

21   (2d Cir. 2003).   Ou failed to demonstrate that the Chinese

22   government tortures repatriated Chinese who have attempted


                                   4
 1   to illegally emigrate, and failed to offer a single piece of

 2   evidence showing that he in particular would be tortured by

 3   the Chinese government should he be repatriated.    See Mu

 4   Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d

 5   Cir. 2005).   Accordingly, the agency reasonably concluded

 6   that Ou failed to establish that he would more likely than

 7   not be tortured, either by, or with the acquiescence of, the

 8   Chinese government should he return to China.

 9       For the foregoing reasons, the petition for review is

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

11   removal that the Court previously granted in this petition

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

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

14   oral argument in this petition is DENIED in accordance with

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

16   Circuit Local Rule 34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19
20




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