Chi Xin Yu v. Holder

581 F. App'x 86

• Court: Court of Appeals for the Second Circuit
• Decided: October 28, 2014
• Docket: 13-2127
• Status: Unpublished

Opinion

SUMMARY ORDER

Petitioner Chi Xin Yu, a native and citizen of the People’s Republic of China, seeks review of a May 2, 2013, decision of the BIA, affirming the October 6, 2010, decision of Immigration Judge (“IJ”) Barbara Nelson, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Chin Xin Yu, No. A071 638 210 (B.I.A. May 2, 2013), aff'g No. A071 638 210 (Immig. Ct. N.Y. City Oct. 6, 2010). We assume the parties’ familiarity with the underlying facts and procedural history of this case.

Under the circumstances of this case, we have reviewed both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008) (quotation marks and citations omitted). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008); Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003), superseded by statute, REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, as recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir.2008).

L Past Persecution

In pre-REAL ID Act cases, such as this case, an adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus to the finding,” and any discrepancy must be “substantial” when measured against the record as a whole. See Secaida-Rosales, 331 F.3d at 307 (internal quotation marks and citations omitted). Substantial evidence supports the agency’s determination that Yu was not credible as to his claim that family planning officials had forced his ex-wife to terminate a pregnancy and had fined and detained him on account of that pregnancy.

Yu omitted from his original asylum application his alleged detention despite a question explicitly asking him to indicate whether he had ever been detained. See Liang Chen v. U.S. Attorney Gen., 454 F.3d 103, 106-07 (2d Cir.2006); see also Xiu Xia Lin, 534 F.3d at 166 n. 3 (“[a]n inconsistency and an omission are ... functionally equivalent.”). Yu did not provide a compelling explanation for this omission. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.2005). Moreover, as the agency noted, Yu had reason to later embellish his claim to include a detention under China’s coercive population control policy. Prior to Yu’s submission of an amended application, we issued our decision in Shi Liang Lin v. U.S. Department of Justice, 494 F.3d 296 (2d Cir.2007), under which he was no longer per se eligible for relief solely based on his spouse’s purported forced procedure.

Given the material omission from Yu’s application, coupled with the timing of his amended application following the Shi Liang Lin decision, the agency reasonably found him not credible as to his claim of past persecution. See Secaida-Rosales, 331 F.3d at 307-08; see also Liang Chen, 454 F.3d at 106-07.

II. Well-Founded Fear of Persecution

For largely the same reasons as this Court set forth in Jian Hui Shao, 546 F.3d 138, we find no error in the agency’s determination that Yu failed to demonstrate his eligibility for relief based on his fear of future persecution for his alleged violation of China’s population control program. See id. at 158-72.

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 peti tion is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED 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).