         10-2542-ag
         Sun v. Holder

                              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 17th day of August, two thousand eleven.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                RICHARD C. WESLEY,
 9                PETER W. HALL,
10                     Circuit Judges.
11       _______________________________________
12
13       XIANG MEI SUN,
14                Petitioner,
15
16                       v.                                     10-2542-ag,
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Gerald Karikari, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Leslie McKay, Assistant
27                                     Director; Margot L. Nadel, Trial
28                                     Attorney, Office of Immigration
29                                     Litigation, Civil Division, United
30                                     States Department of Justice,
31                                     Washington, D.C.
32
 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 Xiang Mei Sun, a Chinese native and citizen,

 6   seeks review of a May 27, 2010 BIA order that affirmed an

 7   Immigration Judge’s (“IJ”) decision to deny Sun’s

 8   application for asylum, withholding of removal, and relief

 9   under the Convention Against Torture (“CAT”).     In re Xiang

10   Mei Sun, No. A097 852 559 (B.I.A. May 27, 2010), aff’g No.

11   A097 852 559 (Immig. Ct. N.Y. City Apr. 10, 2008).     We

12   assume the parties’ familiarity with the underlying facts

13   and procedural history of the case.

14       Here, the BIA did not issue a comprehensive opinion.

15   Rather, it adopted and supplemented the IJ’s decision; thus,

16   we have reviewed the decision of the IJ as supplemented by

17   the BIA.     See Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

18   2005).     Our standards of review are well-established.    8

19   U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519

20   F.3d 90, 95 (2d Cir. 2008); Bah v. Mukasey, 529 F.3d 99, 110

21   (2d Cir. 2008).

22


                                     2
 1       As an initial matter, Sun’s arguments that the IJ

 2   violated her right to due process by failing to hear closing

 3   arguments and by “changing her mind” when the government

 4   attorney requested a long decision are meritless.      The

 5   record indicates that Sun’s attorney did present a lengthy

 6   closing argument.   Furthermore, there is neither a

 7   discussion of a “short” versus “long” decision anywhere in

 8   the hearing transcripts, nor did the IJ ever indicate that

 9   she was prepared to grant asylum.   In addition, Sun’s

10   argument that the IJ’s “anger” over Sun’s failure to remove

11   her IUD demonstrated bias is also without merit.      The IJ’s

12   questions as to why Sun retained her IUD, which Sun

13   testified was harmful to her health, reflect the IJ’s

14   skepticism about the veracity of Sun’s story rather than

15   anger.   Moreover, even if the IJ expressed impatience or

16   dissatisfaction with Sun’s decision to retain the IUD,

17   impatience and dissatisfaction are insufficient to establish

18   bias.    See United States v. English, 629 F.3d 311, 321 (2d

19   Cir. 2011).

20       For asylum applications filed before May 11, 2005 (the

21   effective date of the REAL ID Act), like Sun’s, we generally

22   will not disturb adverse credibility determinations that are

23   based on “specific examples in the record of inconsistent

                                    3
 1   statements . . . about matters material to [an applicant’s]

 2   claim of persecution, or on contradictory evidence or

 3   inherently improbable testimony regarding such matters.”

 4   Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004) (internal

 5   quotation marks omitted), overruled in part on other grounds

 6   by Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.

 7   2007).   Here, the IJ’s credibility determination is

 8   supported by substantial evidence, given Sun’s omission of a

 9   basis for relief and her implausible testimony regarding her

10   intrauterine device (“IUD”).   Most significantly, Sun

11   completely omitted any mention of a forced abortion from her

12   original application.   She did not raise it at her asylum

13   interview or in her initial appearance before the IJ,

14   choosing instead to raise it for the first time in an

15   amended statement submitted to the IJ after she had been in

16   proceedings for nearly one year.   Although Sun maintains

17   that she adequately explained this omission, the IJ

18   reasonably found that the omission was a serious

19   inconsistency that weighed against Sun’s credibility.    See

20   Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003).

21   Further, the IJ reasonably declined to credit Sun’s

22   explanation that the preparer of her original application


                                    4
 1   told her she only needed to state one basis for relief and

 2   that her first lawyer told her not to mention the abortion

 3   since she had not included it in her application.     See

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

 5       The IJ also reasonably relied on an implausibility in

 6   Sun’s testimony.   The IJ noted that while Sun testified, and

 7   the medical evidence confirmed, that her IUD caused her

 8   significant medical problems, Sun refused to remove the IUD,

 9   claiming that if she were returned to China, she would be

10   sterilized and possibly jailed for removing it.     Because of

11   this refusal and Sun’s inability to explain why reinserting

12   an IUD if she is ordered returned to China is not preferable

13   to the suffering caused by her current medical problems, the

14   IJ reasonably found Sun’s story regarding the forcible

15   nature of her IUD insertion to be implausible.    See Yan v.

16   Mukasey, 509 F.3d 63, 67 (2d Cir. 2007). The agency’s

17   credibility determination is supported by substantial

18   evidence because it is based on “specific, cogent reasons”

19   that “bear a legitimate nexus” to the finding.    See Secaida-

20   Rosales, 331 F.3d at 307.

21       Sun also challenges the agency’s conclusion that she

22   failed to meet her burden of proof, arguing that the agency


                                   5
 1   erred in finding that the Chinese authorities’ issuance of a

 2   summons does not rise to the level of persecution.     Because

 3   the summons was issued to Sun’s husband, and contained no

 4   reference to Sun, it does not amount to persecution of Sun,

 5   as “applicants can become candidates for asylum relief only

 6   based on persecution that they themselves have suffered or

 7   must suffer.”    Lin v. U.S. Dep’t of Justice, 494 F.3d 296,

 8   308 (2d Cir. 2007).

 9       Sun further contends that the agency erred in finding

10   that she does not have a well-founded fear of persecution

11   based on her CDP activities in the United States.     “[I]n

12   order to establish eligibility for relief based exclusively

13   on activities undertaken after [her] arrival in the United

14   States, an alien must make some showing that authorities in

15   [her] country of nationality are (1) aware of [her]

16   activities or (2) likely to become aware of [her]

17   activities.”    Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir.

18   2008).   Sun has failed to satisfy either of these

19   requirements because she did not present any evidence that

20   the Chinese government was aware of her activities.     Thus,

21   her assertion that she will be subjected to persecution is

22   speculative.    See, e.g., Wang v. Bureau of Citizenship and

23   Immigration Service, 437 F.3d 276, 278 (2d Cir. 2006).

                                    6
 1       Because Sun’s claims all were based on the same factual

 2   predicate, the agency’s adverse credibility determination

 3   and burden of proof finding were proper bases for the denial

 4   of asylum, withholding of removal, and CAT relief.    See Paul

 5   v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Yang v. U.S.

 6   Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

 7       For the foregoing reasons, the petition for review is

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

 9   removal is VACATED and the pending motion for a stay of

10   removal in this petition is DISMISSED as moot.

11                               FOR THE COURT:
12                               Catherine O’Hagan Wolfe, Clerk
13
14




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