         10-3756-ag
         Yang v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A088 805 110
                               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 2nd day of June, two thousand eleven.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                GUIDO CALABRESI,
 9                RAYMOND J. LOHIER, JR.,
10                      Circuit Judges.
11       _______________________________________
12
13       SUHUA YANG,
14                Petitioner,
15
16                        v.                                    10-3756-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                John Z. Zhang, New York, New York.
24
25       FOR RESPONDENT:                Tony West, Assistant Attorney
26                                      General; John S. Hogan, Senior
27                                      Litigation Counsel; Kiley L. Kane,
28                                      Trial Attorney, Office of
29                                      Immigration Litigation, Civil
30                                      Division, United States Department
31                                      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 Suhua Yang, a native and citizen of the

 6   People’s Republic of China, seeks review of a August 24,

 7   2010 order of the BIA affirming the November 6, 2008

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

 9   denying Yang’s application for asylum, withholding of

10   removal, and relief under the Convention Against Torture

11   (“CAT”).   In re Suhua Yang, No. A088 805 110 (B.I.A. Aug.

12   24, 2010), aff’g No. A088 805 110 (Immigr. Ct. N.Y. City

13   Nov. 6, 2008).   We assume the parties’ familiarity with the

14   underlying facts and procedural history of the case.

15       Under the circumstances of this case, we have reviewed

16   both the BIA’s and IJ’s decisions.   See Yun-Zui Guan v.

17   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).    The applicable

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

19   § 1252(b)(4)(B) (2006); see also Xiu Xia Lin v. Mukasey, 534

20   F.3d 162, 165–66 (2d Cir. 2008); Salimatou Bah v. Mukasey,

21   529 F.3d 99, 110 (2d Cir. 2008).

22       Substantial evidence supports the agency’s conclusion

23   that Yang was not credible.   As the IJ found, although Yang

                                   2
 1   asserted in her asylum application that her brother was

 2   arrested, both her brother’s letter and her testimony on

 3   direct examination omitted this detail.     The IJ was entitled

 4   to rely on this discrepancy in finding Yang not credible.

 5   See 8 U.S.C. § 1158(b)(1)(B)(iii) (2006); Xiu Xia Lin, 534

 6   F.3d at 166–67 n.3 (noting that inconsistencies and

 7   omissions are “functionally equivalent”).

 8       Furthermore, the agency adequately considered Yang’s

 9   explanations for her inconsistent testimony and reasonably

10   declined to credit the explanations.   Yang explained that

11   her brother’s letter omitted details about the arrest

12   because he told her about the incident over the telephone.

13   Yang also explained that she omitted details about her

14   brother’s arrest on direct examination because she

15   understood “arrest” to mean sentenced and jailed, and that

16   because her brother had not been jailed, she did not

17   consider her brother being taken away by Chinese police as

18   an “arrest.”   A reasonable fact-finder would not be

19   compelled to credit Yang’s explanations because her asylum

20   application explicitly provided that her brother was

21   detained and arrested, while the letter from Yang’s brother

22   discussed details of the incident in which police

23   interrupted their mother’s funeral, but did not include any

                                   3
 1   mention of his arrest, detention, or beating as asserted by

 2   Yang.     See Majidi v. Gonzales, 430 F.3d 77, 80–81 (2d Cir.

 3   2005) (holding that an IJ need not credit an applicant’s

 4   explanations for inconsistent testimony unless those

 5   explanations would compel a reasonable fact-finder to do

 6   so).

 7          The adverse credibility determination is further

 8   supported by the IJ’s demeanor finding, to which we give

 9   particular deference, as the IJ relied on Yang’s evasive

10   testimony and lack of responsiveness as reflected in the

11   hearing transcripts.     See id. at 81 n.1 (holding that

12   particular deference is generally afforded to the agency’s

13   assessment of an applicant’s demeanor); see also Li Hua Lin

14   v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006)

15   (“We can be . . . more confident in our review of

16   observations about an applicant’s demeanor where . . . they

17   are supported by specific examples of inconsistent

18   testimony.”).

19          Accordingly, considering the totality of the

20   circumstances — Yang’s omissions and lack of responsiveness

21   — the agency’s credibility determination is supported by

22   substantial evidence.     See 8 U.S.C. § 1158(b)(1)(B)(iii)

23   (2006).    Because the only evidence of a threat to Yang’s

                                     4
 1   life or freedom depended upon her credibility, the adverse

 2   credibility determination in this case necessarily precludes

 3   success on her claims for asylum, withholding of removal,

 4   and CAT relief, as all three claims are based on the same

 5   factual predicate.     See Paul v. Gonzales, 444 F.3d 148,

 6   155–56 (2d Cir. 2006).    Because substantial evidence

 7   supports the IJ’s adverse credibility determination, and

 8   that determination is dispositive, we do not reach Yang’s

 9   remaining arguments.

10       For the foregoing reasons, the petition for review is

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

12   removal that the Court previously granted in this petition

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

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

15   oral argument in this petition is DENIED in accordance with

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

17   Circuit Local Rule 34.1(b).

18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk
20




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