         11-1203-ag
         Piao v. Holder
                                                                                        BIA
                                                                               Hladylwycz, IJ
                                                                                A088 524 661
                           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 5th day of April, 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       YUANZHE PIAO,
14                Petitioner,
15
16                        v.                                    11-1203-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Dehai Zhang, Flushing, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Ernesto H. Molina, Jr.,
27                                     Assistant Director; Gladys M.
28                                     Steffens Guzmán, Trial Attorney,
29                                     Office of Immigration Litigation,
30                                     Civil Division, United States
31                                     Department of Justice, Washington,
32                                     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 Yuanzhe Piao, a native and citizen of the

 6   People’s Republic of China, seeks review of a March 9, 2011,

 7   order of the BIA affirming the March 9, 2009, decision of an

 8   Immigration Judge (“IJ”) denying his application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).   In re Yuanzhe Piao, No. A088 524

11   661 (B.I.A. Mar. 9, 2011), aff’g No. A088 524 661 (Immig.

12   Ct. N.Y. City Mar. 9, 2009).   We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as supplemented by the BIA’s decision.

17   See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

18   The applicable standards of review are well-established.

19   See 8 U.S.C. § 1252(b)(4)(B); see also, e.g., Yanqin Weng v.

20   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21       Although Piao challenges the agency’s pretermission of

22   his asylum application as untimely, we do not address the


                                    2
 1   issue because the agency’s alternative basis for the denial

 2   of asylum, the adverse credibility determination, is

 3   supported by substantial evidence.

 4       The agency concluded that Piao was not credible based

 5   on inconsistencies in his testimony and his asylum

 6   applications.   For asylum applications, such as this one,

 7   governed by the REAL ID Act, the agency may, considering the

 8   totality of the circumstances, base a credibility finding on

 9   an asylum applicant’s “demeanor, candor, or responsiveness,”

10   and inconsistencies in his or her statements, without regard

11   to whether they go “to the heart of the applicant’s claim.”

12   8 U.S.C. § 1158(b)(1)(B)(iii).

13       Piao’s asylum application stated that when he was

14   beaten he suffered a nose bleed and some bruises, while his

15   testimony about the event added the detail that he passed

16   out after being beaten.   Piao challenges the agency’s

17   conclusion, inter alia, that his failure to mention that he

18   passed out was an omission which undermined his credibility.

19   In support of this argument, Piao relies on Secaida-Rosales

20   v. INS, 331 F.3d 297, 308 (2d Cir. 2003), a pre-REAL ID Act

21   case which cautioned against basing adverse credibility

22   determinations on the omission of information from an asylum


                                   3
 1   application because an application is not expected to

 2   constitute “a perfectly complete and comprehensive

 3   recitation of an applicant’s claim.”

 4       Secaida-Rosales’s holding, “that an IJ may not base an

 5   adverse credibility determination on inconsistencies and

 6   omissions that are ‘collateral or ancillary’ to an

 7   applicant’s claims,” was abrogated by the REAL ID Act under

 8   which “an IJ may rely on any inconsistency or omission . . .

 9   as long as the ‘totality of the circumstances’ establishes

10   that an asylum applicant is not credible.”     Xiu Xia Lin v.

11   Mukasey, 534 F.3d 162, 167 (2d Cir. 2007) (emphasis in

12   original; quoting Secaida-Rosales, 331 F.3d at 308; 8 U.S.C.

13   § 1158(b)(1)(B)(iii)).     The REAL ID Act, however, does not

14   alter whether something is an inconsistency or omission.

15   Accordingly, we consider whether Piao “would have been

16   expected to mention [that he passed out] in his asylum

17   application.”     See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d

18   Cir. 2006).     While generally asylum applications are not

19   expected to provide details about every incident, we defer

20   to the IJ’s implicit conclusion that Piao was expected to

21   provide the detail that he passed out because he provided

22   other details about the beating he received.     Thus, the


                                     4
 1   agency reasonably concluded that Piao’s failure to mention

 2   this detail, in the circumstances of this case as a whole,

 3   was an omission undermining his credibility.

 4       The agency’s adverse credibility determination was

 5   additionally supported by Piao’s inconsistent statements

 6   about when he entered the United States.   As the IJ noted,

 7   while Piao testified that he entered the United States in

 8   July 2006, his asylum applications also stated that he

 9   entered in June or May 2006.   Piao did not attempt to

10   explain why he stated that he entered in June 2006 and now

11   argues that he may have given an explanation for his

12   statement that he entered in May 2006 during the hearing,

13   but that the explanation was lost due to a transcription

14   error.   He further argues that this transcription error has

15   resulted in a denial of due process.   This argument is

16   unavailing because he does not now identify what that

17   missing explanation was and thus has not demonstrated that

18   he was prejudiced.   See Garcia-Villeda v. Mukasey, 531 F.3d

19   141, 149 (2d Cir. 2008) (an alien alleging a due process

20   violation must demonstrate “cognizable prejudice”).

21

22



                                    5
 1       The adverse credibility determination was further

 2   supported by Piao’s inconsistent statements about when he

 3   lost his factory position.     He testified and noted in the

 4   written statement in support of his application that he lost

 5   his position in November 2005, but in the employment history

 6   section of his application indicated that he worked at the

 7   factory until 2006.     Piao’s argument that the agency erred

 8   in relying on this inconsistency because it was minor is

 9   unavailing because under the REAL ID Act the agency may rely

10   on any inconsistency.     See Xiu Xia Lin, 534 F.3d at 167.

11       Together, these inconsistencies provide substantial

12   evidence for the agency’s adverse credibility determination.

13   See 8 U.S.C. § 1158(b)(1)(B)(iii).     Because Piao’s claims

14   for asylum, withholding of removal, and CAT relief all rely

15   on the same factual predicate, the agency’s adverse

16   credibility determination forecloses all relief.     See Paul

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

18       For the foregoing reasons, the petition for review is

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

20   removal that the Court previously granted in this petition

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

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


                                     6
1   oral argument in this petition is DENIED in accordance with

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

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7




                                   7
