         12-381
         Wang v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A200 912 682
                            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 22nd day of July, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       ZE WANG,
14                        Petitioner,
15
16                        v.                                    12-381
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                 Lewis G. Hu, New York, NY.
24
25       FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
26                                       Attorney General; Cindy S. Ferrier,
27                                       Assistant Director; Kimberly A.
28                                       Burdge, Trial Attorney, Office of
29                                       Immigration Litigation, United
30                                       States Department of Justice,
31                                       Washington, D.C.
 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       Ze Wang, a native and citizen of the People’s Republic

 6   of China, seeks review of a January 5, 2012, decision of the

 7   BIA affirming the February 11, 2011, decision of Immigration

 8   Judge (“IJ”) Alan A. Vomacka, which denied his application

 9   for asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).     In re Ze Wang, No. A200

11   912 682 (B.I.A. Jan. 5, 2012), aff’g No. A200 912 682

12   (Immig. Ct. N.Y. City Feb. 11, 2011).    We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as modified by the BIA, considering only

17   those grounds for the adverse credibility determination that

18   were affirmed by the BIA.   See Xue Hong Yang v. U.S. Dep’t

19   of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.

20   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The applicable

21   standards of review are well-established.     See 8 U.S.C.

22   § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

23   510, 513 (2d Cir. 2009).

                                   2
 1       Initially, to the extent that Wang raises a claim of

 2   ineffective assistance of counsel, because the claim was not

 3   raised before the BIA, it is unexhausted and we lack

 4   jurisdiction to consider it.     See Garcia-Martinez v. Dep’t

 5   of Homeland Sec., 448 F.3d 511, 513-14 (2d Cir. 2006).

 6   Accordingly, we address only Wang’s challenges to the

 7   adverse credibility determination.

 8       For asylum applications, like Wang’s, governed by the

 9   amendments made to the Immigration and Nationality Act by

10   the REAL ID Act of 2005, the agency may, considering the

11   totality of the circumstances, base a credibility finding on

12   an asylum applicant’s “demeanor, candor, or responsiveness,”

13   the plausibility of his account, and inconsistencies in his

14   statements, without regard to whether they go “to the heart

15   of the applicant’s claim.”     8 U.S.C. § 1158(b)(1)(B)(iii);

16   see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

17   2008).   We “defer to an IJ’s credibility determination

18   unless, from the totality of the circumstances, it is plain

19   that no reasonable fact-finder could make” such a ruling.

20   Xiu Xia Lin, 534 F.3d at 167.       We conclude that the agency

21   reasonably based its adverse credibility determination on

22   inconsistencies in the evidence and Wang’s demeanor.


                                     3
 1          Because the REAL ID Act permits the agency to base a

 2   credibility finding on any inconsistency, the

 3   inconsistencies regarding Wang’s detention support the

 4   agency’s adverse credibility determination.     See id. at 166,

 5   167.     In the statement in support of his asylum application,

 6   Wang indicated that the police interrogated him, beat him,

 7   and tortured him with an “electrical charged rod,” all on

 8   the first day of detention, and did not indicate that he was

 9   further interrogated or beaten during the remainder of his

10   ten-day detention.     As the agency noted, Wang’s testimony

11   differed from that statement, in that he testified that he

12   was questioned repeatedly and beaten “every one or two

13   days.”     Additionally, the letter Wang submitted from a

14   friend lacked any allegation that the friend was beaten

15   during detention or any reference to Wang’s beating.

16   Moreover, both here and before the BIA, Wang states only

17   that the discrepancies are minor, and provides no

18   explanation for the differences in the statements.     See

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

20          The adverse credibility determination is further

21   supported by the IJ’s finding, which we afford particular

22   deference, that Wang’s demeanor was evasive and that he


                                     4
 1   tended to be misleading in his answers to certain questions.

 2   See Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006).

 3          Furthermore, while testifying, Wang indicated that he

 4   was not honest when he applied for his student visa, in that

 5   he submitted documentation showing that he had sufficient

 6   funds to pay for school in the United States, when he did

 7   not.     Wang attempted to explain the dishonesty by stating

 8   that an agency prepared the application for him, and he

 9   “wanted to provide the truth” but the agency told him he

10   could not.     Because the IJ confirmed that at the time Wang

11   submitted the false documentation, he was not fleeing

12   persecution in China, the agency reasonably found that his

13   misrepresentation undermined his overall credibility.     See

14   Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).     Cf.

15   Rui Ying Lin v. Gonzales, 445 F.3d 127, 133-35 (2d Cir.

16   2006).

17          The agency’s adverse credibility finding was further

18   supported by Wang’s failure to provide reasonably available

19   corroborative evidence regarding his alleged detention in

20   China.     Because the IJ had already called Wang’s credibility

21   into question, the agency did not err in relying on the lack

22   of corroboration as further support for the adverse

23   credibility determination.     See Biao Yang v. Gonzales, 496

24   F.3d 268, 273 (2d Cir. 2007).
                                     5
 1       Given the inconsistencies, prior misrepresentation,

 2   demeanor finding, and lack of corroboration, we conclude

 3   that the totality of the circumstances supports the agency’s

 4   adverse credibility determination.    See 8 U.S.C.

 5   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.      Because

 6   the only evidence of a threat to Wang’s life or freedom

 7   depended upon his credibility, the adverse credibility

 8   finding necessarily precludes success on his claims for

 9   asylum, withholding of removal, and CAT relief.      See Paul v.

10   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang,

11   426 F.3d at 523.

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

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

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

17   oral argument in this petition is DENIED in accordance with

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

19   Circuit Local Rule 34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22




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