         11-3940
         Cui-Run v. Holder

                                                                                           BIA
                                                                                     Morace, IJ
                                                                                   A087 434 445

                                  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 New
 4       York, on the 25th day of July, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROBERT D. SACK,
10                RAYMOND J. LOHIER, JR.,
11                     Circuit Judges.
12       _____________________________________
13
14       SONGJIE CUI-RUN,
15                Petitioner,
16
17                           v.                                 11-3940
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                  David A. Bredin, New York, N.Y.
25
26       FOR RESPONDENT:                  Stuart F. Delery, Acting Assistant
27                                        Attorney General; Mary Jane Candaux,
28                                        Assistant Director; Ashley Y. Martin,
29                                        Trial Attorney; Katelin Buell, Law
30                                        Clerk; Office of Immigration
31                                        Litigation, United States Department of
32                                        Justice, 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 is

 4   DENIED.

 5       Petitioner Songjie Cui-Run, a native and citizen of the

 6   People’s Republic of China, seeks review of a September 1,

 7   2011, decision of the BIA affirming the June 18, 2010,

 8   decision of an Immigration Judge (“IJ”) denying his

 9   application for asylum, withholding of removal and relief

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

11   Cui-Run, No. A087 434 445 (B.I.A. Sept. 1, 2011), aff’g No.

12   A087 434 445 (Immig. Ct. N.Y. City June 18, 2010).     We assume

13   the parties’ familiarity with the underlying facts and

14   procedural history of the case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as the final agency determination.     See

17   Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).     The

18   applicable standards of review are well established.     See

19   8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534

20   F.3d 162, 165-66 (2d Cir. 2008) (per curiam).

21       For asylum applications, like Cui-Run’s, governed by the

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


                                   2
 1   circumstances, base a credibility finding on an asylum

 2   applicant’s demeanor, the plausibility of his account, and

 3   inconsistencies in his statements without regard to whether

 4   they go “to the heart of the applicant’s claim.”   8 U.S.C.

 5   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

 6       Substantial evidence supports the agency’s determination

 7   that Cui-Run did not testify credibly regarding his claim that

 8   he was persecuted in China on the basis of his Christian

 9   faith.   The IJ reasonably relied on the implausibility of Cui-

10   Run’s testimony, see 8 U.S.C. § 1158(b)(1)(B)(iii), and the

11   IJ’s reasoning was “tethered to record evidence,” Wengsheng

12   Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007).    The IJ

13   reasonably determined that: it was implausible that Cui-Run

14   would not be able to recall the day of the week on which his

15   father was arrested while hosting a Christian worship meeting

16   in his home, particularly because Cui-Run testified that their

17   worship group gathered only on Sundays and Wednesdays to

18   worship; and that Cui-Run could not recall the name of the

19   relative whose household register he submitted in support of

20   his claim, particularly in light of Cui-Run’s testimony that

21   he transferred his registration to the other household in

22   order to work.   Because the IJ’s implausibility findings are


                                    3
 1   based on record facts, and because “there is nothing else in

 2   the record from which a firm conviction of error could

 3   properly be derived,” id., the inherent implausibility of Cui-

 4   Run’s testimony provides substantial support for the agency’s

 5   adverse credibility determination, see 8 U.S.C.

 6   § 1158(b)(1)(B)(iii) (providing that the agency may base a

 7   credibility determination on “the plausibility of the

 8   applicant’s . . . account”).

 9       Further, in finding Cui-Run not credible, the IJ

10   reasonably relied in part on his demeanor, noting that Cui-

11   Run’s testimony was vague, hesitant and lacking in detail.

12   Because the IJ was in the best position to observe Cui-Run’s

13   manner while testifying, we afford this demeanor finding

14   particular deference.   See Zhou Yun Zhang v. INS, 386 F.3d 66,

15   73-74 (2d Cir. 2004), overruled on other grounds by Shi Liang

16   Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007) (en

17   banc).

18       Further, having questioned Cui-Run’s credibility, the IJ

19   reasonably relied on his failure to provide corroborating

20   evidence to support his claim that he had been persecuted in

21   China.   An applicant’s failure to corroborate testimony may

22   bear on credibility, either because the absence of particular


                                    4
 1   corroborating evidence is viewed as suspicious, or because the

 2   absence of corroboration in general makes an applicant unable

 3   to rehabilitate testimony that has already been called into

 4   question.   See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

 5   Cir. 2007) (per curiam).   Thus, the agency reasonably

 6   concluded that, in light of Cui-Run’s lack of credibility, his

 7   failure to offer evidence supporting his claim that he was

 8   persecuted in China adversely affected his credibility.

 9   Further, the IJ’s decision to decline to allow Reverend Kim’s

10   testimony is entitled to particular deference. See Xiao Ji

11   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

12   2006).

13       We lack jurisdiction to consider Cui-Run’s argument that

14   the BIA erred in affirming the IJ’s decision without opinion.

15   See Kambolli v. Gonzales, 449 F.3d 454, 463 (2d Cir. 2006).

16   Further, because he failed to challenge the IJ’s denial of his

17   request for CAT relief in his brief to the BIA, we lack

18   jurisdiction to consider his argument that the IJ did not

19   consider all of the evidence in support of his CAT claim.      See

20   8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119

21   (2d Cir. 2006) (citing Beharry v. Ashcroft, 329 F.3d 51, 59

22   (2d Cir. 2003)).

23


                                    5
 1       In light of the inherent implausibility of Cui-Run’s

 2   testimony and his failure to corroborate his claims, and in

 3   light of the Court’s deference to the agency’s findings

 4   regarding demeanor, the agency’s adverse credibility

 5   determination regarding Cui-Run’s claim that he suffered past

 6   persecution in China was supported by substantial evidence.

 7   See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534

 8   F.3d at 167 (explaining that this Court “defer[s] to an IJ’s

 9   credibility determination unless, from the totality of the

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

11   could make such an adverse credibility ruling”).    Accordingly,

12   the agency did not err in denying Cui-Run’s application for

13   asylum and withholding of removal.

14       For the foregoing reasons, the petition for review is

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

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

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

18   is DISMISSED as moot. Any pending request for oral argument in

19   this petition is DENIED in accordance with Federal Rule of

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

21   34.1(b).

22                                FOR THE COURT:
23                                Catherine O’Hagan Wolfe, Clerk

24



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