         09-5155-ag
         Wang v. Holder
                                                                                       BIA
                                                                               Van Wyke, IJ
                                                                               A096 258 196
                           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 4th day of February, two thousand eleven.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                ROBERT A. KATZMANN,
 9                DENNY CHIN,
10                    Circuit Judges.
11       _____________________________________
12
13       KE HUI WANG,
14                Petitioner,
15
16                        v.                                    09-5155-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Michael Brown, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Richard M. Evans, Assistant
27                                     Director; Kevin J. Conway, Attorney,
28                                     Office of Immigration Litigation,
29                                     United States Department of Justice,
30                                     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

 4   is DENIED.

 5       Petitioner Ke Hui Wang, a native and citizen of the

 6   People’s Republic of China, seeks review of a November 27,

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

 8   decision of Immigration Judge (“IJ”) William P. Van Wyke,

 9   which denied his application for asylum, withholding of

10   removal, and relief under the Convention Against Torture

11   (“CAT”).     In re Ke Hui Wang, No. A096 258 196 (B.I.A. Nov.

12   27, 2009), aff’g Nos. A096 258 196 (Immig. Ct. N.Y. City

13   Dec. 15, 2008).    We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case, we may consider

16   both the IJ’s and the BIA’s opinions “for the sake of

17   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18   2008) (internal quotations omitted).     The applicable

19   standards of review are well-established.     See Shu Wen Sun

20   v. BIA, 510 F.3d 377, 379 (2d Cir. 2007); Salimatou Bah v.

21   Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).     We review the

22   agency's factual findings, including adverse credibility

23   findings, under the substantial evidence standard, treating

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 1   them as "conclusive unless any reasonable adjudicator would

 2   be compelled to conclude to the contrary."    8 U.S.C. §

 3   1252(b)(4)(B); see also Shu Wen Sun, 510 F.3d at 379.      We

 4   review de novo questions of law and the application of law

 5   to undisputed fact.     Salimaton Bah, 529 F.3d at 110.

 6       As a preliminary matter, Wang does not challenge the

 7   agency’s determination that his asylum application was

 8   untimely under 8 U.S.C. § 1158(a)(2)(B), and thus he has

 9   abandoned that claim.

10       As to withholding of removal and CAT relief,

11   substantial evidence supports the agency’s adverse

12   credibility determination: (1) Wang's poor demeanor while

13   testifying, (2) two significant inconsistences in his

14   testimony, and (3) his failure to provide a reasonable

15   explanation for his difficulties in testifying.     See Shu Wen

16   Sun, 510 F.3d at 379.

17       A.   Demeanor

18       The IJ found Wang not credible, in part because of his

19   demeanor, noting that long pauses preceded some of Wang's

20   answers and that several times he was completely

21   unresponsive.   Because the IJ was in the best position to

22   observe Wang’s manner while testifying, we afford his


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 1   demeanor finding particular deference.     See Niang v.

 2   Mukasey, 511 F.3d 138, 145 (2d Cir. 2007).     Moreover, the

 3   record supports the IJ’s finding that Wang’s answers were

 4   unresponsive on several occasions and that he responded to

 5   numerous questions – including such elemental questions as

 6   what the Chinese government did to him and his wife – by

 7   saying that he did not remember.

 8       B.      Inconsistences

 9       In finding Wang’s testimony not credible, the agency

10   also reasonably relied on two inconsistencies in his

11   testimony.     See Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d

12   Cir. 2007).     First, the agency noted that Wang’s testimony

13   was inconsistent as to whether he was detained before or

14   after his wife was discovered by the family planning

15   officials.     Wang testified, in conformance with his written

16   statement, that the family planning officials arrested him

17   to make him reveal his wife’s whereabouts because she was in

18   hiding.     Wang also testified, however, that he was detained

19   on March 4, 2002, while his written statement indicated that

20   the family planning officials had found his wife on March 3,

21   2002.     When asked to explain this inconsistency, Wang

22   replied “I forgot.”


                                     4
 1       Second, the agency noted that Wang’s testimony was

 2   inconsistent with respect to the provenance of a hotel

 3   receipt dated March 13, 2002, that he submitted in support

 4   of his claim that he was still in China at that time.    Wang

 5   testified that he had given the hotel receipt to his wife in

 6   the hotel and that she sent the receipt to him.    However,

 7   Wang had earlier testified that he had not seen his wife

 8   after the abortion, then adding that he saw her only once

 9   when she came back from the hospital.    When Wang was asked

10   to reconcile his testimony as to whether his wife was with

11   him in the hotel or not, he replied “I cannot remember

12   clear.”

13       Because these inconsistencies relate to the heart of

14   Wang’s claims, and are substantial when measured against the

15   record as a whole, the agency did not err in finding him not

16   credible.    See Wensheng Yan, 509 F.3d at 66.   In addition,

17   the agency was entitled to rely on the cumulative effect of

18   the inconsistencies, even if individually they were

19   ancillary to Wang’s claim.    See Tu Lin v. Gonzales, 446 F.3d

20   395, 402 (2d Cir. 2006).

21       C.      Absence of Reasonable Explanations

22       Finally, Wang argues that he adequately explained that

23   the pauses in his testimony and his lack of memory were due
                                     5
 1   to his lack of education and the stress in his life.     The IJ

 2   reasonably discounted Wang’s explanations, however, noting

 3   that he first testified that his memory problems stemmed

 4   from his stressful work schedule but later indicated that

 5   his memory had been bad since he was a child.   See Majidi v.

 6   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that an

 7   agency need not credit an applicant’s explanations for

 8   inconsistent testimony unless those explanations would

 9   compel a reasonable fact-finder to do so).   The agency did

10   not err in denying Wang’s application for withholding of

11   removal and CAT relief based on its adverse credibility

12   determination, as the claims shared the same factual

13   predicate.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

14   2006) (withholding of removal); Xue Hong Yang v. U.S. Dep’t

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

16       For the foregoing reasons, the petition for review is

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

18   removal that the Court previously granted in this petition

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

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

21   oral argument in this petition is DENIED in accordance with




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

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5
6




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