         09-1105-ag
         Su v. Holder
                                                                                         BIA
                                                                            Gordon-Uruakpa, IJ
                                                                                 A098 712 633
                         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 15 th day of April, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                      Chief Judge,
 9                JOHN M. WALKER, Jr.,
10                GERARD E. LYNCH,
11                      Circuit Judges.
12       _______________________________________
13
14       YUN XIONG SU,
15                Petitioner,
16
17                      v.                                      09-1105-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Gary J. Yerman, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Terri J. Scadron, Assistant
28                                     Director; Wendy Benner-León,
1                             Attorney, Office of Immigration
2                             Litigation, United States Department
3                             of Justice, Washington, D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

6    Board of Immigration Appeals (“BIA”) decision, it is hereby

7    ORDERED, ADJUDGED, AND DECREED, that the petition for review

8    is DENIED.

9        Yun Xiong Su, a native and citizen of the People’s

10   Republic of China, seeks review of a March 5, 2009, order of

11   the BIA affirming the January 18, 2007, decision of

12   Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa, which

13   denied his application for asylum, withholding of removal,

14   and relief under the Convention Against Torture (“CAT”).      In

15   re Yun Xiong Su, No. A098 712 633 (B.I.A. Mar. 5, 2009),

16   aff’g No. A098 712 633 (Immig. Ct. N.Y. City Jan. 18, 2007).

17   We assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       Under the circumstances of this case, we review the

20   IJ’s decision as modified by the BIA’s decision.    See Xue

21   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

22   Cir. 2005).    Administrative findings of fact, including

23   credibility determinations, are “conclusive unless any

24   reasonable adjudicator would be compelled to conclude to the

25   contrary.”    8 U.S.C. § 1252(b)(4)(B); see also Manzur v.

                                    2
1    U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.

2    2007).

3        For asylum applications governed by the REAL ID Act,

4    the agency may, considering the totality of the

5    circumstances, base a credibility finding on an asylum

6    applicant’s “demeanor, candor, or responsiveness,” the

7    plausibility of his or her account, and inconsistencies in

8    his or her statements, without regard to whether they go “to

9    the heart of the applicant’s claim.”        8 U.S.C.

10   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534

11   F.3d 162, 167 (2d Cir. 2008) .       In finding Su not credible,

12   the agency reasonably relied on the fact that, although Su

13   testified that police took him to a private clinic for

14   treatment after beating him, this detail was not present in

15   his asylum application or supporting letters from his father

16   and wife. The agency reasonably found that these omissions

17   reflected negatively on Su’s credibility.        See 8 U.S.C.

18   § 1158(b)(1)(B)(iii) (permitting the agency to base an

19   adverse credibility determination on the “consistency

20   between the applicant’s . . . written and oral statements,”

21   when viewed in light of the totality of the circumstances) ;

22   Xiu Xia Lin, 534 F.3d at 167 (stating that this Court



                                      3
1    “defer[s] . . . to an IJ’s credibility determination unless,

2    from the totality of the circumstances, it is plain that no

3    reasonable fact-finder could make such an adverse

4    credibility ruling”).

5        The IJ’s credibility determination finds further

6    support in Su’s inconsistent testimony regarding why police

7    took him to a private clinic and not a government hospital.

8    Although Su plausibly asserts that his testimony was not

9    necessarily inconsistent, we cannot find that the IJ’s

10   conclusion was either implausible or illogical.     See Siewe

11   v. Gonzales, 480 F.3d 160, 167-68 (2d Cir. 2007) (“Where

12   there are two permissible views of the evidence, the

13   factfinder’s choice between them cannot be clearly

14   erroneous.   Rather, a reviewing court must defer to that

15   choice so long as the deductions are not illogical or

16   implausible.” (internal quotations and citations omitted)).

17       Finally, the IJ did not err in relying on the testimony

18   of a forensic expert in declining to accord evidentiary

19   weight to a document purporting to be a medical record of

20   Su’s wife’s IUD insertion.   Had the IJ concluded that Su was

21   not credible because he submitted a fraudulent document, she

22   would have been required first to find that he knew the



                                   4
1    document was fraudulent.    See Corovic v. Mukasey, 519 F.3d

2    90, 97-98 (2d Cir. 2008).    But she did not.   Rather, the IJ

3    simply determined that the document did not merit

4    evidentiary weight, a matter squarely within her discretion.

5    See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342

6    (2d Cir. 2006).

7        Ultimately, because a reasonable fact-finder would not

8    be compelled to conclude to the contrary, the agency’s

9    adverse credibility determination was supported by

10   substantial evidence, and we need not reach Su’s challenge

11   to the agency’s alternative finding that he failed to meet

12   his burden of proof.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

13   Xia Lin, 534 F.3d at 165-66.    Thus, the agency properly

14   denied Su’s application for asylum and withholding of

15   removal because both claims were based on the same factual

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

17   2006); 8 C.F.R. § 208.13(b). The agency also properly denied

18   Su’s CAT claim because he failed to demonstrate that he

19   would be imprisoned upon return to China, given that he was

20   not currently in violation of China’s population control

21   policy and because he failed to demonstrate that he departed

22   China illegally.   See Mu-Xing Wang v. Ashcroft, 320 F.3d

23   130, 143-44 (2d Cir. 2003) (finding that eligibility for CAT
                                    5
1    relief required the applicant to demonstrate that someone in

2    his “particular alleged circumstances” is more likely than

3    not to be tortured if returned to his country of origin).

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
14
15
16




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