    12-4468
    Tian v. Holder
                                                                                   BIA
                                                                              Sichel, IJ
                                                                          A200 026 821
                          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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 14th day of July, two thousand fourteen.

    PRESENT:
             PIERRE N. LEVAL,
             REENA RAGGI,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    ZHONG FEI TIAN,
             Petitioner,

                     v.                                    12-4468
                                                           NAC

    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                Stuart    Altman,        Esq.,     New York,
                                   New York.

    FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
                                   General; Blair T. O’Connor, Assistant
                                   Director; Scott M. Marconda, Trial
                            Attorney,   Office   of   Immigration
                            Litigation, United States Department
                            of Justice, Washington, D.C.

      UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

      Petitioner Zhong Fei Tian, a native and citizen of the

People’s Republic of China, seeks review of an October 25,

2012 decision of the BIA, affirming the June 8, 2010 decision

of    Immigration   Judge   (“IJ”)     Helen   Sichel,   denying    his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). See In re Zhong

Fei Tian, No. A200 026 821 (B.I.A. Oct. 25, 2012), aff’g No.

A200 026 821 (Immig. Ct. N.Y. City June 8, 2010).           We assume

the   parties’   familiarity    with    the    underlying   facts   and

procedural history in this case.

      Under the circumstances of this case, we have reviewed

both the BIA’s and IJ’s opinions.         See Zaman v. Mukasey, 514

F.3d 233, 237 (2d Cir. 2008).          The applicable standards of

review are well established.          See 8 U.S.C. § 1252(b)(4)(B);

see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165–66 (2d Cir.

2008).    For asylum applications governed by the REAL ID Act,


                                  2
the agency may, considering the totality of the circumstances,

base a credibility finding on inconsistencies in the asylum

applicant’s   statements   and   other   record   evidence   without

regard to whether they go “to the heart of the applicant’s

claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534

F.3d at 163–64.     Here, substantial evidence supports the

agency’s determination that Tian was not credible.

    Tian omitted from both his asylum application and his

testimony at his first merits hearing, and his wife omitted

from her letter, his claim that family planning officials

sought to arrest him and that he fears harm on account of his

resistance to China’s family planning policy.         See 8 U.S.C.

§ 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 166-67

& n.3.    As the IJ noted, Tian had reason later to embellish

his claim to include a fear of harm for resisting the family

planning policy because, after he filed his asylum application

and testified at his first merits hearing, we issued our

decision in Shi Liang Lin v. United States Department of

Justice, 494 F.3d 296 (2d Cir. 2007), under which he was no

longer per se eligible for relief based solely on his wife’s

forced abortion.1

1
  Shi Liang Lin did not create a new category of eligibility
based on “other resistance” to coercive family planning
                                 3
     Tian attempts to explain this discrepancy by arguing that

his former counsel’s employee provided ineffective assistance

by   advising   him   only   to    include          in   his   application     and

testimony information about his wife’s abortion.                            But in

response to open-ended questions, Tian testified about a fear

of imprisonment for having illegally departed China, yet

failed   ever   to    mention     any       facts    related     to   his    other

resistance claim.        In such circumstances, the IJ reasonably

rejected Tian’s explanation that he was prevented from raising

any claim other than his wife’s forced abortion based on

advice from his former counsel’s office.                         See Majidi v.

Gonzales,   430   F.3d    77,     80    (2d    Cir.      2005)   (stating     that

petitioner ”must do more than offer a plausible explanation

for his inconsistent statements to secure relief; he must

demonstrate that a reasonable fact-finder would be compelled

to credit his testimony” (emphasis in original) (internal

quotation marks omitted)); see also Rabiu v. INS, 41 F.3d 879,

882–83 (2d Cir. 1994).


programs.   Persecution based on resistance to a coercive
population control program has been a basis for asylum relief
since   the   Illegal   Immigration  Reform   and   Immigrant
Responsibility Act was enacted in 1996.        See 8 U.S.C.
§ 1101(a)(42)(B).    Therefore, when Tian first applied for
asylum in 2005, his claimed fear of persecution on account of
his resistance to the family planning policy was a basis for
relief.
                                        4
    Given the material omission from Tian’s application and

testimony, coupled with the timing of his additional claim

following the Shi Liang Lin decision, the agency reasonably

found Tian not credible.   See Xiu Xia Lin, 534 F.3d at 163-64,

166 & n.3.    Accordingly, the agency did not err in denying

Tian asylum, withholding of removal, and CAT relief because

those claims were based on the same factual predicate.     See

Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DENIED as moot.    Any pending request for oral argument in

this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                     FOR THE COURT:
                     Catherine O’Hagan Wolfe, Clerk of Court




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