         11-223                                                                        BIA
         Han v. Holder                                                              Burr, IJ
                                                                               A088 551 562



                          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 27th day of September, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                SUSAN L. CARNEY,
10                CHRISTOPHER F. DRONEY,
11                     Circuit Judges.
12       _____________________________________
13
14       LI MIN HAN,
15                Petitioner,
16
17                       v.                                     11-223
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Matthew J. Harris, Law Offices of
25                                     Theodore M. Davis, Long Island City,
26                                     New York.
27
28       FOR RESPONDENT:               Tony West, Assistant Attorney
29                                     General; Shelley R. Goad, Assistant
30                                     Director, Jennifer P. Levings;
 1                             Senior Litigation Counsel, Office of
 2                             Immigration Litigation, United
 3                             States Department of Justice,
 4                             Washington, D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10       Li Min Han, a native and citizen of the People’s

11   Republic of China, seeks review of a December 14, 2010,

12   decision of the BIA affirming the December 15, 2008,

13   decision of Immigration Judge (“IJ”) Sarah Burr, which

14   denied his application for asylum, withholding of removal,

15   and relief under the Convention Against Torture (“CAT”).       In

16   re Li Min Han, No. A088 551 562 (B.I.A. Dec. 14, 2010),

17   aff’g No. A088 551 562 (Immig. Ct. N.Y. City, Dec. 15,

18   2008).   We assume the parties’ familiarity with the

19   underlying facts and procedural history in this case.

20       Under the circumstances of this case we have reviewed

21   both the IJ’s and the BIA’s opinions “for the sake of

22   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

23   2008).   The applicable standards of review are well-

24   established.     See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia

25   Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).     For


                                     2
 1   asylum applications, such as Han’s, governed by the REAL ID

 2   Act, the agency may, “[c]onsidering the totality of the

 3   circumstances, . . . base a credibility finding on the

 4   demeanor, candor or responsiveness of the applicant, . . .

 5   [and] the consistency between the applicant’s or witness’s

 6   written or oral statement, . . . without regard to whether

 7   an inconsistency . . . goes to the heart of the applicant’s

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

 9   F.3d at 167.   We “defer to an IJ’s credibility determination

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

11   that no reasonable fact-finder could make such an adverse

12   credibility ruling.”    Xiu Xia Lin, 534 F.3d at 167.

13       The agency’s adverse credibility determination was

14   based on Han’s demeanor, inconsistent statements, and a

15   false address Han provided to the IJ.

16       In finding that Han’s demeanor was hesitant and non-

17   responsive, the IJ observed that Han‘s testimony, which had

18   been “fluid,” became “evasive and hesitant” once it became

19   clear that his business license contradicted his testimony

20   as to when his business was closed.     Accordingly, this

21   finding is supported by the record and is entitled to

22   particular deference.    See Majidi v. Gonzales, 430 F.3d 77,


                                    3
 1   81 n.1 (2d Cir. 2005); Li Hua Lin v. U.S. Dep’t of Justice,

 2   453 F.3d 99, 109 (2d Cir. 2006) (a reviewing court “can be .

 3   . . more confident in [its] review of observations about an

 4   applicant’s demeanor where . . . they are supported by

 5   specific examples of inconsistent testimony.”).

 6       As the agency found, Han’s testimony was internally

 7   inconsistent.   Han stated that he renewed his business

 8   license in 2000, that it was valid until 2006, and that he

 9   renewed it again in 2006 for a second four-year validity

10   period.   However, the license he submitted as evidence was

11   issued in April 2007, and valid from May 2004 to March 2009.

12   See Xiu Xia Lin, 534 F.3d at 167 (holding that “an IJ may

13   rely on any inconsistency or omission in making an adverse

14   credibility determination”) (emphasis in original).     Since

15   Han testified at one point that he obtained the license, the

16   agency was not required to credit Han’s explanation that his

17   wife obtained it.     See Majidi, 430 F.3d at 80-81 (the agency

18   need not credit applicant’s explanations for inconsistent

19   testimony unless explanations would compel a reasonable

20   fact-finder to do so).

21       The IJ also cited Han’s omission of his wife’s arrest

22   from his testimony.    Han testified that he was unaware of


                                     4
 1   the arrest, but he submitted a letter from his mother

 2   informing him of it.   (For purposes of analyzing a

 3   credibility determination, “[a]n inconsistency and an

 4   omission are . . . functionally equivalent.”) Xiu Xia Lin,

 5   534 F.3d at 166 n.3.

 6       The IJ found that Han provided a false address for the

 7   purpose of evading U.S. immigration authorities.      Han

 8   admitted to purposefully providing the wrong address “just

 9   in case this thing did not go through.”     The IJ was not

10   required to credit Han’s testimony that he gave a false

11   address in New York to evade the Chinese authorities.        See

12   Wensheng Yan v. Mukasey, 509 F.3d 63, 66-67 (2d Cir. 2007)

13   (holding that a finding is not “impermissibly speculative”

14   if it is “tethered to record evidence, and there is nothing

15   else in the record from which a firm conviction of error

16   could properly be derived.”)

17       Given these findings, the agency’s adverse credibility

18   determination is supported by substantial evidence and is a

19   dispositive basis for the agency’s denial of asylum,

20   withholding of removal, and CAT relief as the claims all

21   were based on the same factual predicate.     See Paul v.

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

23   U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
                                    5
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

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




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