         10-693-ag
         Ou v. Holder
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A200 031 252
                          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 18th day of April, two thousand eleven.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                DEBRA ANN LIVINGSTON,
10                DENNY CHIN,
11                     Circuit Judges.
12       ______________________________________
13
14       DONG OU,
15                      Petitioner,
16
17                      v.                                      10-693-ag
18                                                              NAC
19       ERIC H. HOLDER, JR.,
20       UNITED STATES ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Edward J. Cuccia, New York, New
25                                     York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Douglas E. Ginsburg,
29                                     Assistant Director; Judith R.
30                                     O’Sullivan, Trial Attorney, Office
 1                           of Immigration Litigation, United
 2                           States Department of Justice,
 3                           Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Dong Ou, a native and citizen of the People’s Republic

10   of China, seeks review of a January 27, 2010, order of the

11   BIA affirming the March 18, 2008, decision of Immigration

12   Judge (“IJ”) Gabriel C. Videla, denying Ou’s application for

13   asylum, withholding of removal, and relief under the

14   Convention Against Torture (“CAT”).     In re Dong Ou No. A200

15   031 252 (B.I.A. Jan. 27, 2010), aff’g No. A200 031 252

16   (Immig. Ct. N.Y. City Mar. 18, 2008).    We assume the

17   parties’ familiarity with the underlying facts and

18   procedural history in this case.

19       Under the circumstances of this case, we review the

20   IJ’s decision including the portions not explicitly

21   discussed by the BIA.   Yun-Zui Guan v. Gonzales, 432 F.3d

22   391, 394 (2d Cir. 2005).   The applicable standards of review

23   are well-established.   See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia

24   Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); Salimatou

25   Bah v. Mukasey, 529 F.3d 99, 104 (2d Cir. 2008).


                                   2
 1          Substantial evidence supports the agency’s adverse

 2   credibility determination.    See Xiu Xia Lin, 534 F.3d at

 3   167.    For asylum applications, such as Ou’s, governed by the

 4   REAL ID Act of 2005, the agency may, in considering the

 5   totality of the circumstances, base a credibility finding on

 6   an asylum applicant’s demeanor, the plausibility of his or

 7   her account, and inconsistencies in his or her statements,

 8   without regard to whether they go “to the heart of the

 9   applicant’s claim.”    8 U.S.C. § 1158(b)(1)(B)(iii).   Here,

10   the IJ found Ou not credible based on: (1) his demeanor and

11   lack of responsiveness to some questions; (2) his

12   implausible testimony that, although family planning

13   officials were looking for him at his parents’ home, he and

14   his wife held a large wedding party there; (3) his claim

15   that he had presented a fine receipt, when, in fact, he had

16   not done so; (4) his omission from his asylum application

17   that his parents had been arrested; and (5) his admission

18   that he had lied to immigration officials about the basis

19   for his asylum claim when he first arrived in the United

20   States.

21          At the outset, Ou challenges only the first four of the

22   agency’s findings.    Thus, the agency’s reliance on Ou’s

23   admission that he lied to immigration officials stands as a


                                    3
 1   valid basis for the adverse credibility determination.      See

 2   Shunfu Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir. 2008);

 3   see also Yun-Zui Guan v. Gonzales, 432 F.3d 391, 398 (2d

 4   Cir. 2005) (finding it reasonable for the agency to base an

 5   adverse credibility determination “on the commonsense

 6   observation that it is inconsistent for a petitioner to

 7   respond to the same question about the nature of his asylum

 8   claim with two entirely different responses”).

 9       To the extent Ou challenges the agency’s additional

10   findings, the agency’s findings are supported by substantial

11   evidence.   First, we defer to the IJ’s assessment that Ou

12   was likely “following a script” because he was non-

13   responsive or often hesitated before answering simple,

14   direct questions.   See Majidi v. Gonzales, 430 F.3d 77, 81

15   n.1 (2d Cir. 2005) (noting that “[a] fact-finder who

16   assesses testimony together with witness demeanor” is in the

17   best position to evaluate its credibility).   Second, the

18   agency reasonably found implausible Ou’s testimony that he

19   held a large wedding party at his parents’ home while hiding

20   from family planning officials who were looking for him

21   there.   Cf. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

22   315, 336 n.16 (2d Cir. 2006) (upholding an implausibility

23   finding as to a petitioner’s claim that she went into hiding

                                   4
 1   to avoid officials and yet continued working in a location

 2   where the officials were likely to find her).

 3       Third, contrary to Ou’s assertions, the IJ reasonably

 4   found him not credible based on his inconsistent testimony

 5   that he had submitted a “fine receipt” when he had not done

 6   so and, indeed, had also testified that he never paid any

 7   fine.   See 8 U.S.C. § 1158(b)(1)(B)(iii) (noting that

 8   credibility findings may be based on inconsistencies in a

 9   petitioner’s statements).   Finally, the agency reasonably

10   relied on Ou’s omission from his asylum application that his

11   parents had been arrested and reasonably rejected his

12   inconsistent explanations for this omission.    See Majidi,

13   430 F.3d at 80-81 (2d Cir. 2005) (providing that the agency

14   need not credit an applicant’s explanations for inconsistent

15   testimony unless those explanations would compel a

16   reasonable fact-finder to do so); see Xiu Xia Lin, 534 F.3d

17   at 166 n.3, 167 (stating that omissions and inconsistencies

18   are functionally equivalent for purposes of an adverse

19   credibility finding).

20       To the extent that all Ou’s claims were based on the

21   same factual predicate, the agency’s adverse credibility

22   determination was a proper basis for denial of his

23   applications for asylum, withholding of removal, and CAT

                                   5
 1   relief.   See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);

 2   Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).   The

 3   agency also reasonably denied Ou’s CAT claim based on his

 4   illegal departure from China. See Mu Xiang Lin v. U.S. Dep’t

 5   of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005)

 6       For the foregoing reasons, the petition for review is

 7   DENIED in part and DISMISSED in part.   As we have completed

 8   our review, any stay of removal that the Court previously

 9   granted in this petition is VACATED, and any pending motion

10   for a stay of removal in this petition is DISMISSED as moot.

11   Any pending request for oral argument in this petition is

12   DENIED in accordance with Federal Rule of Appellate

13   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

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




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