         09-3930-ag
         Li v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A078 746 423
                          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 6 th day of August, two thousand ten.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                PETER W. HALL,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       _____________________________________
12
13       YONG TONG LI
14
15                      Petitioner,
16
17                       v.                                     09-3930-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21
22                Respondent.
23       _______________________________________
24
25       FOR PETITIONER:               G. Victoria Calle, New York,
26                                     New York.
27
28       FOR RESPONDENT:               John D. Williams, Trial Attorney
29                                     (Tony West, Assistant Attorney
30                                     General; Russell J. E. Verby, Senior
31                                     Litigation Counsel, of counsel),
1                           Office of Immigration Litigation,
2                           Civil Division, United States
3                           Department of Justice, Washington,
4                           D.C.
5
6        UPON DUE CONSIDERATION of this petition for review of a

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

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

9    is DENIED.

10       Petitioner Yong Tong Li, a native and citizen of the

11   People’s Republic of China, seeks review of an August 24,

12   2009 order of the BIA, affirming the November 28, 2007

13   decision of Immigration Judge (“IJ”) Robert D. Weisel,

14   which, following remand from this Court pursuant to the

15   parties’ stipulation, denied Li’s application for asylum,

16   withholding of removal, and relief under the Convention

17   Against Torture (“CAT”).   In re Yong Tong Li, No. A078 746

18   423 (B.I.A. Aug. 24, 2009), aff’g Nos. A078 746 423 (Immigr.

19   Ct. N.Y. City Nov. 28, 2007).       We assume the parties’

20   familiarity with the underlying facts and procedural history

21   in this case.

22       Under the circumstances of this case, we review the

23   decision of the IJ as supplemented by the order of the BIA,

24   provided that the BIA’s supplemental findings do not extend

25   beyond the scope of its review under 8 C.F.R. §


                                     2
1    1003.1(d)(3)(i), (iv).    See Xian Tuan Ye v. DHS, 446 F.3d

2    289, 293, 296 (2d Cir. 2006).       The applicable standards of

3    review are well-established.     See Salimatou Bah v. Mukasey,

4    529 F.3d 99, 110 (2d Cir. 2008); Shu Wen Sun v. BIA, 510

5    F.3d 377, 379 (2d Cir. 2007).

6           Substantial evidence supports the agency’s adverse

7    credibility determination.     See Shu Wen Sun, 510 F.3d at

8    379.    In finding Li’s testimony not credible, the agency

9    relied on the fact that his asylum application omitted his

10   alleged mistreatment while in detention in 1999.       Because

11   this omission goes to the heart of Li’s claim of past

12   persecution, and is substantial when measured against the

13   record as a whole, the agency did not err in relying on the

14   omission in finding Li not credible.       See Secaida-Rosales v.

15   INS, 331 F.3d 297, 308-09 (2d Cir. 2003); see also Xiu Xia

16   Lin v. Mukasey, 534 F.3d 162, 166 n.3 (2d Cir. 2008) (noting

17   that an “omission in a document . . . like a direct

18   inconsistency . . . can serve as a proper basis for an

19   adverse credibility determination”).

20          Contrary to Li’s argument, he was sufficiently on

21   notice to address the omission in his asylum application.

22   Li correctly points out, as the BIA acknowledged, that the



                                     3
1    IJ’s 2002 finding — that Li’s asylum application

2    contradicted his testimony and stated that he was not

3    tortured during his detention — misconstrued Li’s

4    application, because that portion of the application

5    referred to Li’s treatment in detention in the United

6    States.   Nonetheless, because the IJ based his adverse

7    credibility determination on the fact that the asylum

8    application did not support Li’s testimony with respect to

9    his treatment in detention, and the parties’ 2007

10   stipulation provided that the issue of Li’s treatment in

11   detention was to be considered on remand, Li’s argument that

12   he was not on notice to address the issue is without merit.

13   Moreover, because this omission concerned the core of Li’s

14   claim, and was “obvious,” the IJ was not required to

15   identify the inconsistency and afford Li an opportunity to

16   address it before relying on it in his decision.     See Ming

17   Shi Xue v. BIA, 439 F.3d 111, 120-21 (2d Cir. 2006).

18       Ultimately, because a reasonable fact-finder would not

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

20   adverse credibility determination was supported by

21   substantial evidence.   See Shu Wen Sun, 510 F.3d at 379.

22   Accordingly, the agency did not err in denying Li’s



                                   4
1    application for asylum and withholding of removal based on

2    its adverse credibility determination insofar as the claims

3    shared the same factual predicate.     See Paul v. Gonzales,

4    444 F.3d 148, 156 (2d Cir. 2006).     Because the agency’s

5    adverse credibility finding is dispositive of Li’s

6    application for asylum and withholding of removal, we need

7    not address the agency’s alternative burden finding.

8        For the foregoing reasons, the petition for review is

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

10   removal that the Court previously granted in this petition

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

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

13   oral argument in this petition is DENIED in accordance with

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

15   Circuit Local Rule 34.1(b).

16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk
18




                                    5
