         10-1530-ag
         Ouyang v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A088 377 795
                                 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 19th day of April, two thousand eleven.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                JOSEPH M. McLAUGHLIN,
 9                ROBERT A. KATZMANN,
10                     Circuit Judges.
11       _______________________________________
12
13       Zongdang Ouyang,
14                Petitioner,
15
16                          v.                                  10-1530-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                  Gary J. Yerman, New York, NY.
24
25       FOR RESPONDENT:                  Tony West, Assistant Attorney
26                                        General; Paul Fiorino, Senior
27                                        Litigation Counsel; Judith R.
28                                        O’Sullivan, Trial Attorney, Office
29                                        of Immigration Litigation, Civil
30                                        Division, United States Department
                                          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       Petitioner Zongdang Ouyang, a native and citizen of the

 6   People’s Republic of China, seeks review of an April 2,

 7   2010, order of the BIA affirming the May 21, 2008, decision

 8   of Immigration Judge (“IJ”) Barbara A. Nelson, pretermitting

 9   his asylum application and denying his application for

10   withholding of removal and relief under the Convention

11   Against Torture (“CAT”).   In re Zongdang Ouyang, No. A088

12   377 795 (B.I.A. Apr. 2, 2010), aff’g No. A088 377 795

13   (Immigr. Ct. N.Y. City May 21, 2008).   We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history of the case.

16       Under the circumstances of this case, we review the

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

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

19   2005).   The applicable standards of review are well-

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

21   Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per

22   curiam); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.

23   2008).

                                   2
 1       Substantial evidence supports the IJ’s adverse

 2   credibility determination.   The IJ’s adverse credibility

 3   finding was based on several discrepancies among statements

 4   in Ouyang’s written asylum application, testimony, and

 5   corroborating evidence.   As the IJ found: (1) although

 6   Ouyang testified and indicated in his supplementary

 7   statement that he had resisted family planning officials

 8   each time his wife was forced to have an abortion, he

 9   omitted these details from his original asylum application;

10   (2) although Ouyang’s testimony and letters from his sister

11   and his wife indicated that he was detained overnight, he

12   omitted this detail from his asylum application and his

13   supplemental statement; and (3) although Ouyang’s testimony

14   and a letter from his sister indicated that he was injured

15   by a family planning official to such an extent that he

16   required medical treatment, Ouyang omitted this detail from

17   his asylum application and his supplemental statement.

18   Because the IJ was entitled to rely on any discrepancy to

19   find Ouyang not credible, the IJ properly relied on these

20   inconsistencies.   See 8 U.S.C. § 1158(b)(1)(B)(iii)

21   (permitting a trier of fact to base a credibility

22   determination on, inter alia, “the consistency between the

23   applicant’s . . . written and oral statements”; see also Xiu

                                   3
 1   Xia Lin, 534 F.3d at 166 n.3 (explaining that a “direct

 2   inconsistency” in an applicant’s testimony and written

 3   submission “can serve as a proper basis for an adverse

 4   credibility determination”).   Additionally, the IJ did not,

 5   contrary to Ouyang’s contention, engage in improper

 6   speculation or bias when she noted that Ouyang amended his

 7   statements following the issuance of Shi Liang Lin v.

 8   Mukasey, 494 F.3d 296 (2d Cir. 2007) (en banc), as that

 9   observation was based on specific examples in the record.

10   See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007)

11   (holding that although “bald” speculation is an

12   impermissible basis for an adverse credibility finding,

13   “[t]he speculation that inheres in inference is not bald if

14   the inference is made available to the factfinder by record

15   facts, or even a single fact, viewed in the light of common

16   sense and ordinary experience” (internal quotation marks

17   omitted)).

18       Furthermore, the IJ reasonably declined to credit

19   Ouyang’s explanations that: (1) he failed to mention his

20   overnight detention in his asylum application and

21   supplementary statement because he forgot and because he did

22   not consider the detention to be a “law enforcement agency


                                    4
 1   arrest or detention”; (2) he failed to mention his medical

 2   treatment in his asylum application and supplementary

 3   statement because the injury was not serious, particularly

 4   in comparison to his wife’s forced abortion; and (3) his

 5   wife failed to mention his medical treatment in her letter

 6   because only his sister accompanied him to the hospital.

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

 8   (emphasizing that the agency need not credit an applicant’s

 9   explanations for inconsistent testimony unless those

10   explanations would compel a reasonable factfinder to do so).

11       Accordingly, considering the totality of the

12   circumstances, the IJ’s adverse credibility determination

13   was supported by substantial evidence.   See 8 U.S.C.

14   § 1158(b)(1)(B)(iii).   The adverse credibility determination

15   in this case necessarily precludes success on Ouyang’s

16   claims for asylum and withholding of removal because those

17   claims were based on the same factual predicate.   See Paul

18   v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (“[W]e have

19   routinely decided . . . that a withholding of removal claim

20   was meritless since the alien’s asylum claim had failed on

21   adverse credibility grounds.”).   Ouyang has abandoned any

22   challenge to 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
12
13




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