         09-3061-ag
         Li v. Holder
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A097 452 013
                         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 29 th day of March, two thousand ten.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                DEBRA ANN LIVINGSTON,
10                        Circuit Judges.
11       _______________________________________
12
13       ZU YING LI,
14                Petitioner,
15
16                      v.                                      09-3061-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Henry Zhang, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General, Civil Division; Cindy S.
27                                     Ferrier, Senior Litigation Counsel;
28                                     Nairi M. Simonian, Trial Attorney,
29                                     Office of Immigration Litigation,
30                                     United 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        Zu Ying Li, a native and citizen of the People’s

6    Republic of China, seeks review of a June 18, 2009, order of

7    the BIA, affirming the September 6, 2007, decision of

8    Immigration Judge (“IJ”) Thomas Mulligan that denied his

9    application for withholding of removal and relief under the

10   Convention Against Torture (“CAT”).       In re Zu Ying Li,

11   a.k.a. Li Zuying, No. A097 452 013 (B.I.A. June 18, 2009),

12   aff’g No. A097 452 013 (Immig. Ct. N.Y. City Sept. 6, 2007).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we review both

16   the BIA’s and the IJ’s decisions.       See Chen v. Gonzales, 417

17   F.3d 268, 271 (2d Cir. 2005).       The applicable standards of

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

19   § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90,

20   95 (2d Cir. 2008).

21       Substantial evidence supports the agency’s adverse

22   credibility determination. See id. at 95.       That


                                     2
1    determination was based on: (1) Li’s demeanor; (2)

2    inconsistencies between Li’s testimony and the documents in

3    the record regarding the date on which he was allegedly

4    divorced from his wife; (3) inconsistencies between Li’s

5    testimony and an affidavit purportedly from his ex-wife

6    regarding the number of times they were fined for their

7    violation of the family planning policy and the amount of

8    those fines; and (4) a lack of record support for Li’s

9    assertion that the Chinese government continues to look for

10   him.    See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.

11   2003), superseded by statute, Section 101(a)(3) of the REAL

12   ID Act, 8 U.S.C. § 1158(b)(1)(B)(iii), as recognized in Xiu

13   Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d. Cir. 2008).        The

14   agency did not err in declining to credit the explanations

15   Li offered for these discrepancies.    See Majidi v. Gonzales,

16   430 F.3d 77, 81 (2d. Cir. 2005).

17          Because the only evidence of a threat to Li’s life or

18   freedom depended on his credibility, the agency’s adverse

19   credibility determination was fatal to his application for

20   withholding of removal and CAT relief.    See Paul v.

21   Gonzales, 444 F.3d 148, 156 - 57 (2d Cir. 2006).     Having

22   found no error in the agency’s credibility determination, we


                                    3
1    need not reach its alternative burden of proof finding.

2        For the foregoing reasons, the petition for review is

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

4    removal that the Court previously granted in this petition

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

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

7    oral argument in this petition is DENIED in accordance with

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

9    Circuit Local Rule 34.1(b).

10                                 FOR THE COURT:
11                                 Catherine O’Hagan Wolfe, Clerk
12
13




                                    4
