         12-3751
         Wu v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A089 099 862
                         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 7th day of July, two thousand fourteen.
 5
 6       PRESENT: ROBERT D. SACK,
 7                REENA RAGGI,
 8                SUSAN L. CARNEY,
 9                     Circuit Judges.
10       _____________________________________
11
12       XIU ZHAN WU,
13                Petitioner,
14
15                      v.                                      12-3751
16                                                              NAC
17       ERIC H. HOLDER, JR., UNITED STATES
18       ATTORNEY GENERAL,
19                Respondent.
20       _____________________________________
21
22       FOR PETITIONER:               Yee Ling Poon, Robert Duk-Hwan Kim (on
23                                     the brief), New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Daniel E. Goldman, Senior
27                                     Litigation Counsel; Nicole N. Murley,
28                                     Trial Attorney, Office of Immigration
29                                     Litigation, United States Department
30                                     of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 4   review is DENIED.

 5       Xiu Zhan Wu, a native and citizen of China, seeks review

 6   of an August 24, 2012, decision of the BIA affirming an

 7   Immigration Judge’s (“IJ”) November 23, 2010 denial of asylum,

 8   withholding   of   removal,   and       relief   under   the   Convention

 9   Against Torture (“CAT”).      In re Xiu Zhan Wu, No. A089 099 862

10   (B.I.A. Aug. 24, 2012), aff’g No. A089 099 862 (Immig. Ct.

11   N.Y. City Nov. 23, 2010).     We assume the parties’ familiarity

12   with the underlying facts and procedural history of this case.

13       Under the circumstances of this case, we have reviewed

14   both the BIA’s and IJ’s decisions.               See Yun-Zui Guan v.

15   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).              The applicable

16   standards of review are well-established.                 See 8 U.S.C.

17   § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

18   162, 165-66 (2d Cir. 2008); Li Yong Cao v. United States DOJ,

19   421 F.3d 149, 156 (2d Cir. 2005).

20       For asylum applications, like Wu’s, governed by the REAL

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

22   circumstances,” base a credibility finding on inconsistencies


                                         2
 1   in    the   applicant’s         statements         and     other    record    evidence

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

 3   applicant’s         claim,”           demeanor          and      responsiveness        to

 4   questioning,            and    the     “inherent          plausibility”         of    the

 5   applicant’s account.             8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

 6   Lin, 534 F.3d at 163-64.                   Substantial evidence supports the

 7   agency’s adverse credibility determination, specifically, Wu’s

 8   admission,        under       oath,    that       she    lied    during   her    asylum

 9   interview by providing false or exaggerated answers with

10   respect to the date and circumstances of her undisputed

11   sterilization in order to strengthen her claim that the

12   sterilization was forced. Although Wu explained that she lied

13   on advice of an assistant to a lawyer hired by a “snakehead,”

14   the agency was not required to credit her explanation.                                See

15   Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“A

16   petitioner must do more than offer a plausible explanation for

17   his    inconsistent           statements          to    secure     relief;    he     must

18   demonstrate that a reasonable fact-finder would be compelled

19   to    credit      his    testimony.”         (internal        quotation      marks    and

20   citations omitted)). Moreover, the agency was not required to

21   credit      her    testimony          of   forced       sterilization        given   her

22   acknowledged lies on this matter.                       See Siewe v. Gonzales, 480


                                                   3
 1   F.3d 160, 170 (2d Cir. 2007) (noting that “single instance of

 2   false testimony may (if attributable to the petitioner) infect

 3   the balance of the alien’s uncorroborated or unauthenticated

 4   evidence”); see also 8 U.S.C. § 1158(b)(1)(B)(iii) (“There is

 5   no presumption of credibility[.]”).        Thus, we conclude that

 6   the record falsity provides substantial evidence supporting

 7   the agency’s adverse credibility finding.

 8         Given this lack of credibility, the agency properly

 9   considered the absence of corroborating evidence.          See Biao

10   Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).        While the

11   agency agreed that the medical documentation confirmed Wu’s

12   sterilization, the record supports the agency’s conclusion

13   that there was no evidence of when the procedure took place or

14   whether it was involuntary.           The agency also reasonably

15   declined to credit the letter from Wu’s husband.          See Matter

16   of H-L-H & Z-Y-Z, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)

17   (giving     diminished   evidentiary    weight   to   letters     from

18   relatives because they were “interested witnesses who were not

19   subject to cross-examination”) overruled on other grounds by

20   Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012);

21   see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

22   342   (2d    Cir.   2006)   (explaining   that   weight   given     to


                                       4
 1   applicant’s     evidence    lies    largely   within    discretion   of

 2   agency).

 3       Given that Wu’s own testimony was called into question by

 4   fabrications at her asylum interview and that she provided no

 5   corroborating evidence from a non-interested party that her

 6   sterilization was forced, the agency reasonably found her to

 7   have failed credibly to demonstrate past persecution. See Xiu

 8   Xia Lin, 534 F.3d at 167.          As all of Wu’s claims share the

 9   same factual predicate, that determination is dispositive as

10   to asylum, withholding of removal, and CAT relief.            See Paul

11   v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

12       Nor has Wu shown that the BIA abused its discretion by

13   denying    remand   due    to   alleged   ineffective   assistance   of

14   counsel.    Li Yong Cao, 421 F.3d at 151, 156-57.             The BIA

15   denied remand because Wu had not substantially complied with

16   the requirements for an ineffective assistance claim set forth

17   in In re Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), and had

18   failed to provide any evidence showing that she had ever been

19   represented by attorney Hak Tung Lam. Notably, Wu provided no

20   details of any agreement with Lam or any proof that she had

21   notified him of her allegations.          Lam never filed a notice of

22   appearance nor did he appear at any of Wu’s immigration

23   hearings.     Given this lack of evidence of representation and
                                         5
 1   lack of compliance with the Lozada requirements, the BIA did

 2   not abuse its discretion in denying remand. Jian Yun Zheng v.

 3   U.S. DOJ, 409 F.3d 43, 46 (2d Cir. 2005).

 4       Insofar as Wu now argues that we should remand to allow

 5   her to present the agency with further evidence in support of

 6   her asylum claim, specifically, a press release about Lam’s

 7   misconduct, we decline to do so as she fails to show that it

 8   would alter the result in her case.   See Li Yong Cao, 421 F.3d

 9   at 156 (noting that petitioners seeking remand due to new

10   evidence face heavy burden of demonstrating likelihood that

11   new evidence would alter result in case).

12       For the foregoing reasons, the petition for review is

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

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

15   and any pending motion for a stay of removal in this petition

16   is DISMISSED as moot.    Any pending request for oral argument

17   in this petition is DENIED in accordance with Federal Rule of

18   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

19   34.1(b).

20                       FOR THE COURT:
21                       Catherine O’Hagan Wolfe, Clerk of Court
22
23




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