        11-1634-ag
        Ou v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A088 782 035
                        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 15th day of March, two thousand twelve.
 5
 6      PRESENT:
 7               JOSÉ A. CABRANES,
 8               RICHARD C. WESLEY,
 9               RAYMOND J. LOHIER, JR.,
10                    Circuit Judges.
11      _______________________________________
12
13      MING OU, AKA, MING REN,
14               Petitioner,
15
16                     v.                                      11-1634-ag
17                                                             NAC
18      ERIC H. HOLDER, JR., UNITED STATES
19      ATTORNEY GENERAL,
20               Respondent.
21      _______________________________________
22
23      FOR PETITIONER:                Yee Ling Poon, New York, New York.
24
25      FOR RESPONDENT:                Tony West, Assistant Attorney
26                                     General; Ernesto H. Molina, Jr.,
27                                     Assistant Director; Jamie M. Dowd,
28                                     Senior Litigation Counsel, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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       Ming Ou, a native and citizen of the People’s Republic

 6   of China, seeks review of a March 31, 2011 order of the BIA,

 7   affirming the June 4, 2009 decision of an Immigration Judge

 8   (“IJ”), which denied his application for asylum, withholding

 9   of removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Ming Ou, No. A088 782 035 (B.I.A. Mar. 31,

11   2011), aff’g No. A088 782 035 (Immig. Ct. N.Y. City June 4,

12   2009).     We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

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

16   Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006).     The

17   applicable standards of review are well established.

18   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

19   F.3d 510, 513 (2d Cir. 2009).

20       For asylum applications, such as this one, governed by

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

22   the circumstances, base a credibility finding on an asylum

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

                                     2
 1   account, and inconsistencies in his or her statements,

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

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

 4   Substantial evidence supports the IJ’s adverse credibility

 5   determination here.

 6       In finding Ou not credible, the IJ reasonably relied on

 7   an inconsistency between Ou’s testimony and a letter signed

 8   by his pastor and minister regarding the date on which Ou

 9   started attending the Church of Grace in the United States.

10   See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

11   2008).   A reasonable fact finder would not be compelled to

12   credit Ou’s explanations for these inconsistencies.     See

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

14   The IJ also reasonably relied on inconsistencies between

15   Ou’s testimony and that of his witness with regard to

16   whether Ou ever attended services at the Church of Grace’s

17   Brooklyn, New York location, when Ou first became involved

18   in Christianity, and whether he attended any church services

19   prior to his membership in an underground church in China.

20   Although Ou argues that these inconsistencies were too minor

21   to support an adverse credibility determination, “an IJ may

22   rely on any inconsistency or omission in making an adverse


                                   3
 1   credibility determination as long as the ‘totality of the

 2   circumstances’ establishes that an asylum applicant is not

 3   credible.”    Xiu Xia Lin, 534 F.3d at 167.

 4       Ou also argues that the IJ erred in failing to give him

 5   the opportunity to explain non-obvious inconsistencies

 6   between his testimony and that of his witness.     The IJ may

 7   not rest an adverse credibility finding on a non-dramatic,

 8   putative inconsistency without first putting the applicant

 9   on notice and giving the applicant a chance to reconcile the

10   testimony.    See Ming Shi Xue v. BIA, 439 F.3d 111, 125 (2d

11   Cir. 2006).   Here, as the IJ reasonably found, the

12   inconsistencies between Ou’s testimony and that of his

13   witness were not minor, as they directly pertained to when

14   Ou became a Christian, whether Ou openly practiced

15   Christianity in China at any time prior to his membership in

16   an underground church, and whether and to what extent Ou

17   practiced Christianity in the United States.     Accordingly,

18   the IJ was not required to specifically request an

19   explanation for the inconsistencies between Ou’s testimony

20   and that of his witness.    Ming Shi Xue, 439 F.3d at 122

21   n.13.

22



                                    4
 1       Furthermore, the IJ reasonably relied on Ou’s failure

 2   to present adequate corroboration to support his claim that

 3   he had been detained, beaten, and fined because of his

 4   membership in an underground Christian church in China.      See

 5   Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

 6   Finally, a reasonable fact-finder would not be compelled to

 7   conclude that the IJ ignored any material evidence, as the

 8   record indicates that the IJ was aware of the letter from

 9   Ou’s friend.   See Jian Hui Saho v. Mukasey, 546 F.3d 138,

10   169 (2d Cir. 2008); see also Xiao Ji Chen v. U.S. Dep’t of

11   Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006).   Although

12   the IJ erred in finding Ou had testified that he did not

13   attend church in China after his arrest, remand would be

14   futile because there is little doubt that the agency would

15   find Ou not credible absent any errors.   See Cao He Lin v.

16   U.S. Dep’t of Justice, 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 regarding the

19   inconsistencies in the record and regarding Ou’s failure to

20   rehabilitate his testimony with corroborating evidence, the

21   adverse credibility determination was supported by

22   substantial evidence.   See Xiu Xia Lin, 534 F.3d at 165-66.

23   The adverse credibility determination is dispositive of Ou’s
                                   5
 1   claims for asylum and withholding of removal, as both claims

 2   were based on the same factual predicate.     See Paul v.

 3   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

 4       For the foregoing reasons, the petition for review is

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

 6   removal that the Court previously granted in this petition

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

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

 9   oral argument in this petition is DENIED in accordance with

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

11   Circuit Local Rule 34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk




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