        11-1300-ag
        Dong v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A088 779 633
                          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 22nd day of December, two thousand nine.
 5
 6      PRESENT:
 7               BARRINGTON D. PARKER,
 8               RICHARD C. WESLEY,
 9               RAYMOND J. LOHIER, JR.,
10                   Circuit Judges.
11      _______________________________________
12
13      AIDONG DONG,
14               Petitioner,
15
16                       v.                                    11-1300-ag
17                                                             NAC
18      ERIC H. HOLDER, JR., UNITED STATES
19      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, Civil Division; John S.
27                                     Hogan, Senior Litigation Counsel,
28                                     Office of Immigration Litigation;
 1                          David H. Westmore, Trial Attorney,
 2                          Office of Immigration Litigation,
 3                          United States Department of Justice,
 4                          Washington, D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10       Aidong Dong, a native and citizen of the People’s

11   Republic of China, seeks review of a March 11, 2011 order of

12   the BIA, affirming the July 15, 2009 decision of Immigration

13   Judge (“IJ”) Steven R. Abrams, which denied Dong’s

14   application for asylum, withholding of removal, and relief

15   under the Convention Against Torture (“CAT”).      In re Aidong

16   Dong, No. A088 779 633 (B.I.A. Mar. 11, 2011), aff’g No.

17   A088 779 633 (Immig. Ct. N.Y. City July 15, 2009).     We

18   assume the parties’ familiarity with the underlying facts

19   and procedural history in this case.

20       Under the circumstances of this case, we have reviewed

21   both the BIA's and IJ's opinions.     Yun-Zui Guan v. Gonzales,

22   432 F.3d 391, 394 (2d Cir. 2005).    The applicable standards

23   of review are well established.     See 8 U.S.C.

24   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

25   (2d Cir. 2009).

                                  2
 1       For asylum applications, such as this one, governed by

 2   the REAL ID Act, the agency may, considering the totality of

 3   the circumstances, base a credibility finding on an asylum

 4   applicant’s demeanor, the plausibility of his or her

 5   account, and inconsistencies in his or her statements,

 6   without regard to whether they go “to the heart of the

 7   applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii).

 8   Analyzed under the REAL ID Act, substantial evidence

 9   supports the agency’s adverse credibility determination.

10       In finding Dong not credible, the agency reasonably

11   relied in part on her demeanor, finding that Dong provided

12   varied explanations as to why she went into hiding three

13   months after realizing that she was pregnant, and that this

14   portion of her testimony seemed to develop as she testified.

15   See Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).

16   The IJ’s finding with regard to Dong’s demeanor was further

17   supported by a specific example of an inconsistency between

18   her testimony and asylum application as to the reason she

19   refused to pay the entire amount of a fine assessed by

20   family planning officials due to her alleged violation of

21   China’s family planning policy.   See Li Hua Lin v. U.S.

22   Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).     A


                                   3
 1   reasonable fact-finder would not be compelled to credit

 2   Dong’s explanations for this inconsistency.   Majidi, 430

 3   F.3d at 80-81.   Furthermore, the IJ reasonably found

 4   implausible that, between the time Dong returned from South

 5   Africa in July 2005 and went into hiding in April 2006,

 6   family planning officials did not inquire as to why she

 7   failed to attend her regularly-scheduled gynecological

 8   examinations, and that despite learning that she was

 9   pregnant in January 2006, Dong chose not to hide from family

10   planning officials until April 2006.   See 8 U.S.C. §

11   1158(b)(1)(B)(iii); see also Siewe v. Gonzales, 480 F.3d

12   160, 168-69 (2d Cir. 2007).   Although the IJ’s decision is

13   not without flaw, remand would be futile because we have

14   little doubt that the agency would find Dong not credible

15   absent any errors.   See Cao He Lin v. U.S. Dep’t of Justice,

16   428 F.3d 391, 401 (2d Cir. 2005).

17       Ultimately, because a reasonable fact-finder would not

18   be compelled to conclude to the contrary, the IJ’s adverse

19   credibility determination was supported by substantial

20   evidence.   See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166.

21   The agency’s denial of Dong’s application for asylum,

22   withholding of removal, and CAT relief was not in error as


                                   4
 1   all three claims shared the same factual predicate.      See

 2   Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006)

 3   (withholding of removal); Xue Hong Yang v. U.S. Dep’t of

 4   Justice, 426 F.3d 520, 523 (2d Cir. 2005) (CAT).

 5       For the foregoing reasons, the petition for review is

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

 7   removal that the Court previously granted in this petition

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

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

10   oral argument in this petition is DENIED in accordance with

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

12   Circuit Local Rule 34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16




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