Xiang Yang v. Gonzales

Second Circuit

Xiang Yang v. Gonzales

166 F. App'x 544

CourtCourt of Appeals for the Second Circuit

DecidedFebruary 13, 2006

DocketNo. 04-0952-AG

StatusPublished

This text of 166 F. App'x 544 (Xiang Yang v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Xiang Yang v. Gonzales, 166 F. App'x 544 (2d Cir. 2006).

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Opinion

SUMMARY ORDER

Xiang Yang petitions for review of the BIA’s February 4, 2004 denial of relief from removal under the Convention Against Torture (“CAT”). We assume the parties’ familiarity with the facts, proceedings below, and specification of issues on appeal.

The IJ found petitioner not credible because of inconsistencies between his testimony at the hearing, his airport interview, and his asylum application. Because the airport interview was not designed to elicit the details of petitioner’s claim and no follow up questions were asked, the IJ’s reliance on this interview was erroneous. See Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir.2004). Nevertheless, because of the substantial differences between the petitioner’s asylum application, on which the IJ could properly rely, and his hearing testimony, “there is no realistic possibility that, absent the errors the IJ would have reached a different eonclusion.” Cao He Lin v. United States Dep’t of Justice, 428 F.3d 391, 401 (2d Cir.2005).

In the absence of credible testimony, the petitioner failed to carry his burden of proof to show that it was more likely than not he would be tortured if returned to China. See 8 C.F.R. § 1208.16(c)(2); Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir.2004). We cannot consider petitioner’s claim that background materials supported his CAT claim because no background materials were submitted during his removal hearing. See 8 U.S.C. § 1252(b)(4)(A).

Based on the foregoing, the petition for review is DENIED and the previously granted stay of deportation is VACATED.

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SUMMARY ORDER

Xiang Yang petitions for review of the BIA’s February 4, 2004 denial of relief from removal under the Convention Against Torture (“CAT”). We assume the parties’ familiarity with the facts, proceedings below, and specification of issues on appeal.

The IJ found petitioner not credible because of inconsistencies between his testimony at the hearing, his airport interview, and his asylum application. Because the airport interview was not designed to elicit the details of petitioner’s claim and no follow up questions were asked, the IJ’s reliance on this interview was erroneous. See Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir.2004). Nevertheless, because of the substantial differences between the petitioner’s asylum application, on which the IJ could properly rely, and his hearing testimony, “there is no realistic possibility that, absent the errors the IJ would have reached a different eonclusion.” Cao He Lin v. United States Dep’t of Justice, 428 F.3d 391, 401 (2d Cir.2005).

In the absence of credible testimony, the petitioner failed to carry his burden of proof to show that it was more likely than not he would be tortured if returned to China. See 8 C.F.R. § 1208.16(c)(2); Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir.2004). We cannot consider petitioner’s claim that background materials supported his CAT claim because no background materials were submitted during his removal hearing. See 8 U.S.C. § 1252(b)(4)(A).

Based on the foregoing, the petition for review is DENIED and the previously granted stay of deportation is VACATED.

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166 F. App'x 544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/xiang-yang-v-gonzales-ca2-2006.

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