Wong v. Holder

11-534-ag Wong v. Holder BIA Nelson, IJ A098 547 400 A099 372 927 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AMENDED 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 9th day of January, two thousand twelve. — 5 — 6 PRESENT: 7 BARRINGTON D. PARKER, 8 RICHARD C. WESLEY, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _______________________________________ — 12 — 13 SIEW VOON WONG, CHUN YIP LAM, 14 Petitioners, — 15 — 16 v. 11-534-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 ______________________________________ — 22 — 23 FOR PETITIONERS: James Costo, Brooklyn, New York. — 24 — 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General; Richard M. Evans, Assistant 27 Director; Aliza B. Alyeshmerni, 28 Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, D.C. — 4 — 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Petitioners Siew Voon Wong (“Wong”) and Chun Yip Lam 10 (“Lam”), natives and citizens of Malaysia, seek review of a 11 January 20, 2011 decision of the BIA affirming the January 12 28, 2009, decision of Immigration Judge (“IJ”) Barbara A. 13 Nelson, pretermitting their applications for asylum, and 14 denying withholding of removal, and relief under the 15 Convention Against Torture (“CAT”). In re Siew Voon Wong, 16 Chun Yip Lam a.k.a. Chunyip Lam, Nos. A098 547 400/099 372 17 927 (B.I.A. Jan. 20, 2011), aff’g Nos. A098 547 400/099 372 18 927 (Immig. Ct. N.Y.C. Jan. 28, 2009). We assume the 19 parties’ familiarity with the underlying facts and 20 procedural history in this case. 21 Under the circumstances of this case, we have reviewed 22 both the BIA’s and IJ’s opinions. See Zaman v. Mukasey, 514 23 F.3d 233, 237 (2d Cir. 2008). The applicable standards of 24 review are well established. See 8 U.S.C. § 1252 (b)(4)(B); — 2 — 1 see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d 2 Cir. 2008). Because Wong and Lam did not challenge the 3 agency’s pretermission of their asylum claim, we address 4 only the denial of withholding of removal and CAT relief. 5 The agency reasonably found that petitioners failed to 6 establish past persecution given their lack of credibility 7 on the single incident that formed the basis of their past 8 claim. See Zhong v. U.S. Dep’t of Justice, 480 F.3d 104 , 9 127 (2d Cir. 2007) (finding that inconsistencies at the 10 heart of a petitioner’s asylum claim to be entitled to 11 greater legal significance in support of an adverse 12 credibility determination). In their respective asylum 13 applications, petitioners stated that Lam was attacked on 14 account of his Chinese ethnicity in 1993, but in the same 15 applications, later stated the attack occurred in 1998. 16 Before the IJ, Wong testified that the 1998 date was 17 correct, and cited an error by the preparer as the reason 18 for this inconsistency. The agency reasonably declined to 19 credit this explanation. See Majidi v. Gonzales, 430 F.3d 20 77, 81 (2d Cir. 2005). The agency also reasonably relied on 21 an inconsistency between Wong’s testimony that Lam’s scars 22 were a result of the assault, and the asylum applications — 3 — 1 which omitted that information. The agency reasonably 2 declined to credit Wong’s explanation that they “forgot” to 3 include the information. See id. Given these 4 inconsistencies regarding the sole incident of alleged harm, 5 the agency’s adverse credibility determination is supported 6 by substantial evidence. See Xiu Xia Lin, 534 F.3d at 165 - 7 66. 8 Wong and Lam’s failure to demonstrate past persecution 9 required them to demonstrate eligibility based on a 10 reasonable fear of future persecution. See — 11 — 8 C.F.R. § 1208.13 (b)(1), (2); see also Ramsameachire v. 12 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). In establishing 13 a well-founded fear or likelihood of persecution, an 14 applicant need not “provide evidence that there is a 15 reasonable possibility he or she would be singled out 16 individually for persecution if . . . [t]he applicant 17 establishes that there is a pattern or practice in his or 18 her country of nationality . . . of persecution of a group 19 of persons similarly situated to the applicant.” — 20 — 8 C.F.R. § 1208.13 (b)(2)(iii); see also id., § 1208.16(b) 21 (2)(i). Applicants claiming only a prospective fear of 22 persecution must make some showing that their ethnicity will 23 subject them to persecution. See Hongsheng Leng v. Mukasey, — 4 — — 1 — 528 F.3d 135, 142-43 (2d Cir. 2008). Wong and Lam’s 2 argument that the agency failed to consider their pattern 3 and practice claim is unavailing because, as the IJ found, 4 they failed to demonstrate widespread violence against 5 ethnic Chinese in Malaysia. See Huang v. U.S. I.N.S., 421 6 F.3d 125, 129 (2d Cir. 2005) (a fear is not objectively 7 reasonable if it lacks “solid support” in the record and is 8 merely “speculative at best.”); Guan Shan Liao v. U.S. Dep’t 9 of Justice, 293 F.3d 61 , 68 (2d Cir. 2002) (finding no error 10 in the BIA’s summary consideration of insignificant 11 details). Because Wong and Lam were unable to show an 12 objective likelihood of persecution needed to make out a 13 withholding of removal claim, they were similarly unable to 14 meet the higher standard required to succeed on a claim for 15 CAT relief as the claims were based on the same facts and 16 evidence. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 17 2006). 18 We do not reach petitioners’ argument that the IJ erred 19 in relying on a 1997 Department of State Report, as that 20 argument was not raised before the agency. See Zhong, 480 21 F.3d at 107 n.1(b), 125. 22 For the foregoing reasons, the petition for review is 23 DENIED. As we have completed our review, any stay of — 5 — 1 removal that the Court previously granted in this petition 2 is VACATED, and any pending motion for a stay of removal in 3 this petition is DISMISSED as moot. Any pending request for 4 oral argument in this petition is DENIED in accordance with 5 Federal Rule of Appellate Procedure 34(a)(2), and Second 6 Circuit Local Rule 34.1(b). 7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk — 9 — — 10 — — 6 —