Filed: Jan. 22, 2016
Latest Update: Mar. 02, 2020
Summary: 14-2060 Xu v. Lynch BIA Zagzoug, IJ A200 166 765 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 NOTATI
Summary: 14-2060 Xu v. Lynch BIA Zagzoug, IJ A200 166 765 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 NOTATIO..
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14-2060
Xu v. Lynch
BIA
Zagzoug, IJ
A200 166 765
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 22nd day of January, two thousand sixteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 REENA RAGGI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 HAN XU,
14 Petitioner,
15
16 v. 14-2060
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Zhong Yue Zhang, Flushing, New York.
25
26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
27 Attorney General; Derek C. Julius,
1 Senior Litigation Counsel; Judith R.
2 O’Sullivan, Trial Attorney, Office
3 of Immigration Litigation, U.S.
4 Department of Justice, Washington,
5 D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review is
10 DENIED.
11 Petitioner Han Xu, a native and citizen of the People’s
12 Republic of China, seeks review of a June 2, 2014 decision of
13 the BIA affirming a May 30, 2013 decision of an Immigration Judge
14 (“IJ”), denying Xu’s application for asylum, withholding of
15 removal, and relief under the Convention Against Torture
16 (“CAT”). In re Han Xu, No. A200 166 765 (B.I.A. June 2, 2014),
17 aff’g No. A200 166 765 (Immig. Ct. N.Y.C. May 30, 2013). We
18 assume the parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 Under the circumstances of this case, we have reviewed both
21 the IJ’s and the BIA’s opinions “for the sake of completeness.”
22 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
23 2006). The applicable standards of review are well
2
1 established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
2 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The agency may,
3 “[c]onsidering the totality of the circumstances,” base a
4 credibility finding on an asylum applicant’s demeanor, the
5 plausibility of his account, and inconsistencies in his
6 statements and other record evidence “without regard to
7 whether” they go “to the heart of the applicant’s claim.”
8 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 163-64.
9 Substantial evidence supports the agency’s determination that
10 Xu was not credible.
11 The agency reasonably relied on Xu’s demeanor, noting that
12 his rehearsed and stilted testimony on direct examination
13 changed significantly upon cross-examination, when his
14 testimony became confused and unresponsive. See 8 U.S.C.
15 § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales,
430 F.3d 77,
16 81 n.1 (2d Cir. 2005). The agency’s demeanor finding and the
17 overall credibility determination are bolstered by record
18 inconsistencies. See Li Hua Lin v. U.S. Dep’t of Justice, 453
19 F.3d 99, 109 (2d Cir. 2006); see also Xiu Xia
Lin, 534 F.3d at
20 165-67. Xu made inconsistent statements regarding the reason
3
1 he remained in the United States in 1999, Xu’s brother omitted
2 from his letter threats (against Xu) that he had received in
3 1999, and Xu omitted from his April 2011 written statement his
4 later assertion that officials had visited and threatened his
5 brother on three occasions between January and April 2011. See
6 Xiu Xia Lin, 534 F.3d at 166 n.3 (“An inconsistency and an
7 omission are . . . functionally equivalent.”).
8 Having questioned Xu’s credibility, the agency reasonably
9 relied further on his failure to provide credible evidence to
10 rehabilitate his testimony. See Biao Yang v. Gonzales, 496
11 F.3d 268, 273 (2d Cir. 2007). The IJ also did not err in
12 rejecting as implausible Xu’s explanation for his failure to
13 submit his family’s household registry. He asserted that China
14 does not permit registries to leave the country; however, as
15 the IJ noted based on her own experience, household registries
16 from the People’s Republic of China are regularly submitted in
17 immigration court in this country. See Xiu Xia Lin,
534 F.3d
18 at 163, 167-68; Siewe v. Gonzales,
480 F.3d 160, 168-69 (2d Cir.
19 2007) (providing that the Court defers to an IJ’s finding unless
20 it is based on “bald” speculation and noting that “speculation
4
1 that inheres in inference is not ‘bald’ if the inference is made
2 available to the factfinder by record facts, or even a single
3 fact, viewed in the light of common sense and ordinary
4 experience.”).
5 Given the demeanor, inconsistency, and corroboration
6 findings, the agency’s adverse credibility determination is
7 supported by substantial evidence, and is dispositive of Xu’s
8 claims for asylum, withholding of removal, and CAT relief. See
9 8 U.S.C. § 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F.3d 148,
10 156-57 (2d Cir. 2006). Accordingly, we do not consider the
11 parties’ arguments regarding the IJ’s alternative finding that
12 Xu’s asylum application was untimely.
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of removal
15 that the Court previously granted in this petition is VACATED,
16 and any pending motion for a stay of removal in this petition
17 is DISMISSED as moot. Any pending request for oral argument
18
19
20
5
1 in this petition is DENIED in accordance with Federal Rule of
2 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
3 34.1(b).
4 FOR THE COURT:
5 Catherine O=Hagan Wolfe, Clerk
6
