Filed: May 25, 2016
Latest Update: Mar. 02, 2020
Summary: 15-1046 Xu v. Lynch BIA Balasquide, IJ A201 124 092 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 NOT
Summary: 15-1046 Xu v. Lynch BIA Balasquide, IJ A201 124 092 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 NOTA..
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15-1046
Xu v. Lynch
BIA
Balasquide, IJ
A201 124 092
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 25th day of May, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 QIHUAN XU,
14 Petitioner,
15
16 v. 15-1046
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: John Chang, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Paul
27 Fiorino, Senior Litigation Counsel;
28 Judith R. O’Sullivan, Trial
1 Attorney, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Qihuan Xu, a native and citizen of the People’s
11 Republic of China, seeks review of a March 24, 2015, decision
12 of the BIA affirming a January 24, 2013, decision of an
13 Immigration Judge (“IJ”) denying Xu’s application for asylum,
14 withholding of removal, and relief under the Convention Against
15 Torture (“CAT”). In re Qihuan Xu, No. A201 124 092 (B.I.A. Mar.
16 24, 2015), aff’g No. A201 124 092 (Immig. Ct. N.Y. City Jan.
17 24, 2013). We assume the parties’ familiarity with the
18 underlying facts and procedural history in this case.
19 We review both the IJ’s and the BIA’s opinions. Yun-Zui
20 Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The
21 applicable standards of review are well established. See 8
22 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d 162,
23 165-66 (2d Cir. 2008)(per curiam). For asylum applications
24 like Xu’s, governed by the REAL ID Act, the agency may,
25 “[c]onsidering the totality of the circumstances,” base a
2
1 credibility finding on inconsistencies in an applicant’s
2 statements and other record evidence “without regard to
3 whether” they go “to the heart of the applicant’s claim.” 8
4 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
5 Here, the agency’s adverse credibility determination is
6 supported by substantial evidence.
7 The agency reasonably relied on a discrepancy between Xu’s
8 testimony and supporting documents and on false statements he
9 made to procure a student visa. See Xiu Xia
Lin, 534 F.3d at
10 163-64; Siewe v. Gonzales,
480 F.3d 160, 170-71 (2d Cir. 2007).
11 Xu testified that he was baptized in October 2011, but the
12 certificate (and his asylum application) stated he was baptized
13 in November 2010. Moreover, Xu admitted that he lied on his
14 application for a student visa when he stated he was a Beijing
15 college student; his asylum application and family register
16 stated that he only completed middle school and he testified
17 that he dropped out of high school. Xu explained that his visa
18 application was completed by an unspecified agency and he did
19 not know what it said. The IJ was not required to credit Xu’s
20 explanation. Majidi v. Gonzales,
430 F.3d 77, 80 (2d Cir.
21 2005).
3
1 The agency also reasonably relied on Xu’s failure to
2 adequately corroborate his claim that he practiced Christianity
3 in the United States. Biao Yang v. Gonzales, 496 F.3d 268, 273
4 (2d Cir. 2007). Xu was given nearly two years to produce
5 witnesses, but provided no witnesses or letters from church
6 members corroborating his church attendance in the United
7 States. Xu stated he could not obtain a witness or letters
8 because his fellow church members were afraid of being arrested
9 or removed to China. The record does not compel the conclusion
10 that witness testimony was unavailable. Cf. 8 U.S.C.
11 § 1252(b)(4).
12 Considering Xu’s false visa application statement, the
13 inconsistency between his testimony and baptism certificate,
14 and his failure to corroborate his claim, the “totality of the
15 circumstances” supports the adverse credibility determination.
16 See Xiu Xia
Lin, 534 F.3d at 167. That determination is
17 dispositive of asylum, withholding of removal, and CAT relief
18 because all three forms of relief relied on the same factual
19 predicate. See Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir.
20 2006).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of removal
4
1 that the Court previously granted in this petition is VACATED,
2 and any pending motion for a stay of removal in this petition
3 is DENIED as moot. Any pending request for oral argument in
4 this petition is DENIED in accordance with Federal Rule of
5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
6 34.1(b).
7 FOR THE COURT:
8 Catherine O=Hagan Wolfe, Clerk
5
