         09-4647-ag
         You v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A073 226 653
                              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 20 th day of July, two thousand ten.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                RICHARD C. WESLEY,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _______________________________________
12
13       FENG ZHEN YOU,
14                Petitioner,
15
16                       v.                                     09-4647-ag
17                                                              NAC
18       ERIC H. HOLDER, Jr., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Edward J. Cuccia, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General, Francis W. Fraser, Senior
28                                     Litigation Counsel, Jacob A.
29                                     Bashyrov, Trial Attorney, Office of
30                                     Immigration Litigation, Civil
31                                     Division, United States Department
32                                     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        Petitioner Feng Zhen You, a native and citizen of the

6    People’s Republic of China, seeks review of an October 13,

7    2009, order of the BIA, affirming the April 15, 2008,

8    decision of Immigration Judge (“IJ”) Sandy K. Hom, denying

9    her application for asylum, withholding of removal, and

10   relief under the Convention Against Torture (“CAT”).     In re

11   Feng Zhen You, No. A073 226 653 (B.I.A. Oct. 13, 2009),

12   aff’g No. A073 226 653 (Immig. Ct. N.Y. City Apr. 15, 2008).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history of the case.

15       Under the circumstances of this case, we review the

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

17   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     “We review

18   the agency's factual findings, including adverse credibility

19   determinations, under the substantial evidence standard,

20   treating them as ‘conclusive unless any reasonable

21   adjudicator would be compelled to conclude to the

22   contrary.’” Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d

23   Cir.2007), quoting 8 U.S.C. § 1252(b)(4)(B).     Because You

24   filed her asylum application before May 11, 2005, the

                                  2
1    amendments made to the Immigration and Nationality Act by

2    the REAL ID Act of 2005 do not apply to her asylum

3    application.    See Pub. L. No. 109-13, § 101(h)(2), 119 Stat.

4    231, 305 (2005).

5        Substantial evidence supports the IJ’s adverse

6    credibility determination.    The IJ found that: (1) although

7    You’s 1994 application stated that family planning officials

8    “dragged [her] to the abortion and sterilization operation,”

9    her 2007 application stated that, following a struggle with

10   family planning cadres, she fell down the stairs and had a

11   miscarriage; and (2) although You’s 2007 application stated

12   that she was prevented from registering her marriage because

13   she was underage, she was not under the legal age to marry

14   at that time.    Although minor and isolated discrepancies may

15   be insufficient to support an adverse credibility finding,

16   see Diallo v. INS, 232 F.3d 279, 285-86 (2d Cir. 2000), the

17   multiple discrepancies here were not isolated, and related

18   to events at the heart of You’s claim – that she suffered

19   past persecution based on her violation of China’s family

20   planning policy.

21       We generally will not disturb adverse credibility

22   determinations that are based on “specific examples in the


                                    3
1    record of inconsistent statements . . . about matters

2    material to [an applicant’s] claim of persecution, or on

3    contradictory evidence or inherently improbable testimony

4    regarding such matters.”   Zhou Yun Zhang v. INS, 386 F.3d

5    66, 74 (2d Cir. 2004) (internal quotation marks omitted),

6    overruled in part on other grounds by Shi Liang Lin v. U.S.

7    Dep’t. of Justice, 494 F.3d 296, 305 (2d Cir. 2007) (en

8    banc).   Contrary to You’s argument that the IJ should not

9    have relied on the inconsistent statements in her 1994

10   application, we have held that if the applicant’s statements

11   to an asylum officer and her later testimony present

12   materially different accounts of her purported persecution,

13   the inconsistencies may render her testimony incredible.

14   See Ramsameachire v. Ashcroft, 357 F.3d 169, 180-81 (2d Cir.

15   2004).

16       Additionally, the IJ was not required to credit You’s

17   explanation that, she did not know what was in her 1994

18   application because it was completed by a travel agency.

19   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

20   The IJ thus reasonably relied on the cumulative effect of

21   the inconsistencies between You’s testimony and her written

22   statement to find her testimony unworthy of belief.     See Tu


                                   4
1    Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006).

2        Furthermore, the IJ reasonably relied on You’s demeanor

3    to find her not credible, noting that she was “hesitant,”

4    “unsure in terms of her responses,” and “repetitive in her

5    answers.”     We afford particular deference to such

6    assessments of an applicant’s demeanor.     See Majidi, 430

7    F.3d at 81 n.1.

8        Lastly, because the IJ did not find You’s testimony

9    credible, he properly noted the absence of documentary

10   evidence that may have corroborated her claim that she had

11   been forcibly sterilized.     See Xiao Ji Chen v. U.S. Dep’t of

12   Justice, 471 F.3d 315, 341 (2d Cir. 2006).     Although You

13   argues that the IJ erred in giving diminished weight to the

14   letters she submitted in support of her application, we

15   defer to the IJ’s evaluation of documentary evidence.

16   Id. at 342.

17       Accordingly, substantial evidence supports the agency’s

18   adverse credibility determination.     See Zhou Yun Zhang, 386

19   F.3d at 74.     Because the only evidence of a threat to You’s

20   life or freedom depended upon her credibility, the adverse

21   credibility determination in this case necessarily precludes

22   success on her claim for asylum, withholding of removal, and


                                     5
1    CAT relief.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d

2    Cir. 2006).

3        For the foregoing reasons, the petition for review is

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

5    removal that the Court previously granted in this petition

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

7    this petition is DISMISSED as moot.

 8
 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe, Clerk
11
12
13




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