Filed: Sep. 18, 2015
Latest Update: Mar. 02, 2020
Summary: 14-1060 Xu v. Lynch BIA Cheng, IJ A200 603 621 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 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: 14-1060 Xu v. Lynch BIA Cheng, IJ A200 603 621 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 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 ..
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14-1060
Xu v. Lynch
BIA
Cheng, IJ
A200 603 621
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 18th day of September, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 XIAN ZHU XU,
14 Petitioner,
15
16 v. 14-1060
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Theodore N. Cox, New York, New York.
25
26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
27 Attorney General, Civil Division;
28 Stephen J. Flynn, Assistant
29 Director; James A. Hurley, Attorney,
1 Office of Immigration Litigation,
2 United 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 is
8 DENIED.
9 Petitioner Xian Zhu Xu, a native and citizen of China, seeks
10 review of a March 31, 2014 decision of the BIA affirming a July
11 12, 2012 decision of an Immigration Judge (“IJ”) denying Xu’s
12 application for asylum, withholding of removal, and relief
13 under the Convention Against Torture (“CAT”). In re Xian Zhu
14 Xu, No. A200 603 621 (B.I.A. Mar. 31, 2014), aff’g No. A200 603
15 621 (Immig. Ct. N.Y.C. July 12, 2012). We assume the parties’
16 familiarity with the underlying facts and procedural history
17 in this case.
18 We have reviewed the IJ’s decision as supplemented by the
19 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
20 The applicable standards of review are well established. See
21 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510,
22 513 (2d Cir. 2009).
2
1 For asylum applications like Xu’s, that are governed by the
2 REAL ID Act, the agency may, “[c]onsidering the totality of the
3 circumstances,” base a credibility finding on inconsistencies
4 in an asylum applicant’s statements and other record evidence
5 “without regard to whether” they go “to the heart of the
6 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); See Xiu
7 Xia Lin v. Mukasey, 534 F.3d 162, 163-64, 167 (2d Cir. 2008)(per
8 curiam).
9 In its adverse credibility finding here, the agency
10 reasonably relied on the inconsistencies between Xu’s credible
11 fear interview and her testimony and application. Xu’s
12 credible fear interview bears sufficient indicia of
13 reliability, and Xu does not contest that the relevant
14 assertions that she made there were false and conflicted with
15 the asylum claim she presented in her subsequent application
16 and testimony. See Ming Zhang v. Holder,
585 F.3d 715, 723-25
17 (2d Cir. 2009).
18 Xu argues that the agency erred by relying solely upon the
19 discrepancies between her credible fear interview and her
20 testimony and application. When the agency “has ‘identified
21 a material inconsistency in an aspect of [the applicant’s] story
3
1 that served as an example of the very persecution from which
2 he sought asylum,’ . . . the inconsistency [can] afford[]
3 substantial evidence to support the adverse credibility
4 finding.” Xian Tuan Ye v. DHS, 446 F.3d 289, 295 (2d Cir. 2006)
5 (quoting Majidi v. Gonzales,
430 F.3d 77, 80 (2d Cir. 2005)).
6 The inconsistencies relied upon by the agency were material:
7 they concerned whether or not Xu had an abortion, whether she
8 was detained for hours or 20 days, whether she was pregnant once
9 or twice, whether she remained in hiding for 11 years, and
10 whether she was persecuted because she violated the family
11 planning policy or if there was an additional basis, such as
12 her support of Falun Gong. The agency’s reliance on these
13 discrepancies was proper.
14 Thus, at her credible fear interview, Xu alleged that
15 family planning officials discovered her second pregnancy,
16 arrested and detained her for 20 days, and forced her to
17 terminate the pregnancy because she was not married. She
18 stated that she went into hiding for almost 11 years following
19 that incident. In contrast, her asylum application and
20 testimony omit any assertions about the abortion and second
21 pregnancy, the 20-day detention, and her 11 years of hiding.
4
1 Instead, there, Xu alleged that she was detained for a few hours
2 and fined for being pregnant out of wedlock, but was not forced
3 to have an abortion. She asserted in addition that she was
4 later arrested, detained, and beaten for criticizing the
5 Chinese Government’s suppression of Falun Gong. Xu’s
6 explanation for the divergent accounts—that she was forced to
7 tell the asylum officer the story a snakehead gave her—is not
8 one that the agency was compelled to credit, particularly since
9 the snakehead did not attend the interview, Xu was instructed
10 there on the importance of telling the truth, and her husband
11 had already been granted withholding of removal on a Falun Gong
12 claim. See Majidi, 430 F.3d at 80 (“A petitioner must do more
13 than offer a plausible explanation for his inconsistent
14 statements to secure relief; he must demonstrate that a
15 reasonable fact-finder would be compelled to credit his
16 testimony.” (internal quotations omitted)).
17 Xu also faults the IJ for not considering her Falun Gong
18 claim and her husband’s testimony. The IJ’s decision contains
19 detailed descriptions of both, however, and the IJ specifically
20 concluded that, after “considering all the evidence,” there was
21 no “reasonable way to reconcile” the two different accounts of
5
1 persecution that Xu advanced. In re Xian Zhu Xu, No. A200 603
2 621, at 25 (Immig. Ct. N.Y.C. July 12, 2012). Although the IJ
3 stated that she relied on inconsistencies relating to the family
4 planning ground, the agency is not required to “expressly parse
5 or refute on the record each individual argument or piece of
6 evidence offered by the petitioner.” Zhi Yun Gao v. Mukasey,
7 508 F.3d 86, 87 (2d Cir. 2007)(per curiam)(internal quotation
8 marks omitted).
9 Xu’s final argument is that the agency inappropriately
10 applied the doctrine falsus in uno, falsus in omnibus because
11 the agency did not consider that her husband’s testimony
12 corroborated her claim and that Xu’s credible fear interview
13 was not reliable. The agency explicitly considered, however,
14 that Xu’s husband’s testimony corroborated her own and that her
15 husband was unable to clarify certain discrepancies in her
16 testimony and the record. See Immig. Ct. Dec. at 16-20. In
17 addition, as noted above, the agency did not err in relying on
18 Xu’s credible fear interview because it bore sufficient indicia
19 of reliability. Ming
Zhang, 585 F.3d at 723-25.
20 Because the totality of the circumstances supports the
21 agency’s adverse credibility determination, and because all of
6
1 Xu’s claims relied on the same factual predicate, the
2 determination is dispositive of asylum, withholding of removal,
3 and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
4 Cir. 2006)
5 For the foregoing reasons, the petition for review is
6 DENIED. Since we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED,
8 and any pending motion for a stay of removal in this petition
9 is DISMISSED as moot. Any pending request for oral argument
10 in this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O=Hagan Wolfe, Clerk
7
