         12-1202
         Yuan v. Holder
                                                                                        BIA
                                                                                     Hom, IJ
                                                                               A077 810 890
                           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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 7th day of August, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       ZHOUJIN YUAN,
14                Petitioner,
15
16                        v.                                    12-1202
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Nathan Weill, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Stephen J. Flynn,
27                                     Assistant Director; Imran R. Zaidi,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, Civil
30                                     Division, United States Department
31                                     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       Zhoujin Yuan, a native and citizen of The People’s

 6   Republic of China, seeks review of a March 13, 2012,

 7   decision of the BIA affirming the January 7, 2010, decision

 8   of Immigration Judge (“IJ”) Sandy Hom, which denied her

 9   application for asylum, withholding of removal and relief

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

11   Yuan, No. A077 810 890 (B.I.A. Mar. 13, 2012), aff’g No.

12   A077 810 890 (Immig. Ct. N.Y. City Jan. 7, 2010).     We assume

13   the parties’ familiarity with the underlying facts and

14   procedural history of this case.

15       Under the circumstances of this case, we have reviewed

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

17   See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

18   522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271

19   (2d Cir. 2005).     The applicable standards of review are well

20   established.   See 8 U.S.C. § 1252(b)(4)(B); see also Xiao Ji

21   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 334-35 (2d Cir.

22   2006).   Because Yuan filed her asylum application in 1999,


                                     2
 1   the REAL ID Act does not apply in this case.   See REAL ID

 2   Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302,

 3   303 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii));

 4   Matter of S-B-, 24 I. & N. Dec. 42, 45 (BIA 2006).     A pre-

 5   REAL ID Act adverse credibility determination must be based

 6   on “specific, cogent” reasons that bear a “legitimate nexus

 7   to the finding.”   See Secaida-Rosales v. INS, 331 F.3d 297,

 8   307 (2d Cir. 2003) (quotation omitted).1   Inconsistent

 9   testimony often bears a legitimate nexus to an adverse

10   credibility finding, but it need not be fatal if it is

11   “minor and isolated,” and the testimony is otherwise

12   “generally consistent, rational, and believable.”    Diallo v.

13   INS, 232 F.3d 279, 288 (2d Cir. 2000).

14       Substantial evidence supports the agency’s adverse

15   credibility finding as the record reflects a major

16   inconsistency regarding Yuan’s claim that she was forcibly

17   sterilized in China.   As the agency found, although Yuan

18   testified before the IJ that her sterilization certificate

19   had been lost and she had never obtained a copy, in fact,


         1
           Secaida-Rosales has been abrogated in part by the
     REAL ID Act, see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167
     (2d Cir. 2008)(per curiam), but applies here because the
     REAL ID Act does not govern in this case. See Dong Zhong
     Zheng v. Mukasey, 552 F.3d 277, 287 n.6 (2d Cir. 2009).
                                   3
 1   she had submitted the certificate with her asylum

 2   application several years earlier.     The agency reasonably

 3   declined to credit Yuan’s explanation that she was unaware

 4   that the certificate was submitted with her asylum

 5   application or alternatively that she did not understand

 6   what it said, as the record contains documentation showing

 7   that she discussed the certificate in her asylum interview.

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

 9       Yuan’s argument that the BIA improperly engaged in

10   independent fact-finding and relied on evidence not in the

11   record is not supported by the record–the BIA upheld the

12   same inconsistency finding the IJ made, and contrary to

13   Yuan’s claim, the asylum officer’s assessment summarizing

14   her asylum interview is included in the record.

15       The adverse credibility determination is further

16   bolstered by the agency’s finding that Yuan failed to

17   independently corroborate her claim.     See Biao Yang v.

18   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)(per curiam).

19   Yuan’s assertion that the IJ did not make a corroboration

20   finding is again contrary to the record, and her claim that

21   the agency was required to point to specific missing

22   documents before making a corroboration finding applies only


                                  4
 1   when the agency denies an otherwise credible applicant on

 2   corroboration grounds alone. See, e.g., Jin Shui Qiu v.

 3   Ashcroft, 329 F.3d 140, 153 (2d Cir. 2003), overruled on

 4   other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494

 5   F.3d 296 (2d Cir. 2007)(en banc); see also Biao Yang, 495

 6   F.3d at 273.

 7       Given the inconsistency in Yuan’s testimony concerning

 8   the central component of her asylum claim, her lack of

 9   compelling explanation for the inconsistency, and the

10   failure to identify any error in the agency’s corroboration

11   finding, the adverse credibility determination is supported

12   by substantial evidence.    As the credibility determination

13   calls into question the credibility of Yuan’s forced

14   sterilization, the findings are sufficiently related to the

15   heart of her claim to satisfy the pre-REAL ID Act

16   requirements for an adverse credibility finding.     See

17   Secaida-Rosales, 331 F.3d at 307; Diallo, 232 F.3d at 288.

18       The adverse credibility determination in this case

19   necessarily precludes success as to both asylum and

20   withholding of removal as both claims share the same factual

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

22   2006).   Yuan does not challenge the denial of CAT relief.


                                     5
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

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




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