Long Chun Lian v. Holder
Opinion
SUMMARY ORDER
Long Chun Lian, a native and citizen of China, seeks review of a February 28, 2013 decision of the BIA affirming the February 23, 2011 decision of an Immigration Judge (“IJ”), denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Long Chun Lian, No. A089 855 319 (B.I.A. Feb. 28, 2013), aff'g No. A089 855 319 (Immig. Ct. N.Y. City Feb. 23, 2011). 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 BIA’s and IJ’s decisions. See Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
We dismiss the petition as to asylum because we lack jurisdiction to review the agency’s determination that Lian’s asylum application is untimely. See 8 U.S.C. § 1158(a)(2)(B), (3). Although we retain jurisdiction to review “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), Lian argues only that his relative’s testimony should have been sufficient to establish his time of entry. Although Lian uses the words “due process,” his argument merely disputes the agency’s factual findings and does not raise a reviewable constitutional claim. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 333 (2d Cir. 2006).
*9 We deny the petition as to withholding of removal and CAT relief because the agency’s adverse credibility determination is supported by substantial evidence. The adverse credibility determination is supported by inconsistencies in the record and omissions in Lian’s asylum application. First, the agency reasonably relied on Lian’s omission of information regarding past harm from his application. See Xiu Xia Lin, 534 F.3d at 164 (“in evaluating an ... applicant’s credibility, an IJ may rely on omissions and inconsistencies”); see also 8 U.S.C. §§ 1158(b)(l)(B)(iii) (“a trier of fact may base a credibility determination on ... the consistency between the applicant’s or witness’s written and oral statements ... [and] the internal consistency of each such statement”). The application states that Lian was beaten once, but Lian testified that he was beaten three or four times. Whether Lian’s failure to identify each beating in his application is considered an omission, or if the application is considered inconsistent with his testimony, this discrepancy supports the adverse credibility determination. Lian’s explanation — merely a restatement that he did not include the information— was insufficient to compel a reasonable fact finder to conclude that his testimony was credible. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)(providing that a petitioner “must demonstrate that his explanation for a discrepancy would compel a reasonable fact-finder to credit his testimony”) (internal quotation marks and citations omitted).
The agency also reasonably relied on the implausibility of Lian’s testimony about his church attendance in New York. Lian testified that he lived in Florida from 2008 to 2010, but attended church in New York during that period by taking a 30-hour round-trip bus ride two or three times each month. Although the claimed travel may have been literally possible, the agency did not err in finding Lian’s testimony about it implausible. In addition, testimony regarding his salary was incompatible with the amount he would have had to spend on bus tickets and on payments to the snakehead who transported him to the United States. Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007) (holding that where the IJ’s findings are “tethered to record evidence, and there is nothing else in the record from which a firm conviction of error could properly be derived,” an inherent implausibility finding should not be disturbed).
Given Lian’s omissions regarding past harm as well as his implausible testimony regarding his church attendance, the record supports the agency’s adverse credibility determination. See Xiu Xia Lin, 534 F.3d at 167. Because all of Lian’s claims share the same factual predicate, the adverse credibility determination is also dis-positive of his claims for withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 155-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DISMISSED, in part, and DENIED, in part. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
Reference
- Full Case Name
- LONG CHUN LIAN, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent
- Status
- Unpublished