Opinion
No. 08-0341-ag NAC.
March 5, 2009.
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.
FOR PETITIONER: Peter L. Quan, Law Offices of Peter L. Quan, PLLC, New York, New York. FOR RESPONDENT: Gregory G. Katsas, Acting Assistant Attorney General, Civil Division, Emily Anne Radford, Assistant Director, Patrick J. Glen, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.
PRESENT: HON. ROGER J. MINER, HON. ROSEMARY S. POOLER, HON. REENA RAGGI, Circuit Judges.
Petitioner, Xiao Qing Han, a native and citizen of China, seeks review of a December 28, 2007 order of the BIA affirming the August 21, 2006 decision of Immigration Judge ("IJ") Javier Balasquide denying his application for asylum, withholding of removal and relief under the Convention Against Torture ("CAT").In re Xiaoqing Han, No. A99 697 146 (B.I.A. Dec. 28, 2007), aff'g No. A99 697 146 (Immigr. Ct. N.Y. City Aug. 21, 2006). We assume the parties' familiarity with the underlying facts and procedural history of the case.
When the BIA agrees with the IJ's conclusion that a petitioner is not credible and, without rejecting any of the IJ's grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA's and IJ's opinions — or more precisely, the Court reviews the IJ's decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). This Court reviews the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). For asylum applications governed by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005), the agency may, considering "the totality of the circumstances," base a credibility finding on an asylum applicant's demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, 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 v. Mukasey, 534 F.3d 162, 164 (2d Cir. 2008).
Here, Han does not challenge before this Court the IJ's demeanor and corroboration findings. Therefore, any challenge to those findings is waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1, 546 n. 7 (2d Cir. 2005). Thus, those findings stand as valid bases for the IJ's adverse credibility determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008); see also Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir. 2005) (particular deference is given to the trier of fact's assessment of demeanor); Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 341 (2d Cir. 2006) (An applicant's failure to corroborate his or her testimony may also bear on credibility, where the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question.).
The remaining findings, which Han does challenge on appeal, are supported by substantial evidence. For example, the IJ properly found: (1) on direct examination, Han stated that he joined the Hong Kong Youth Alliance Association in June 2005 but stated in his asylum application, and later in the hearing, that he joined in June 2001; (2) Han testified inconsistently as to whether he participated in a candlelight vigil in June 2005 or was in detention at that time; and (3) Han failed to state on direct examination that government officials took him to a hotel and beat him before taking him to a detention center, a detail provided in his asylum application. Han explained each of these inconsistencies by stating that he did not understand the questions asked of him; however, the agency need not credit an applicant's explanations for inconsistent testimony unless those explanations would compel a reasonable fact-finder to do so.See Majidi v. Gonzales, 430 F.3d at 81. Moreover, although the record shows that there were translation problems at times, there is no indication that Han was denied the opportunity to put his claim before the judge. See Augustin v. Sava, 735 F.2d 32, 37-38 (2d Cir. 1984). Ultimately, the inconsistencies in Han's testimony, Han's hesitant and evasive demeanor, and his lack of corroborating evidence provide substantial evidence for the IJ's adverse credibility finding. See Xiu Xia Lin, 534 F.3d at 167.
Therefore, the IJ properly denied asylum, withholding of removal, and CAT relief where the only evidence that Han would be persecuted depended on his credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (holding that where the only evidence of a threat to the petitioner's life or freedom depended upon the petitioner's credibility, an adverse credibility determination necessarily precludes success on a claim for asylum or withholding of removal); Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
For the foregoing reasons, the petition for review is DENIED.