Filed: Aug. 02, 2018
Latest Update: Mar. 03, 2020
Summary: 17-425 Xue v. Sessions BIA Poczter, IJ A202 134 546 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: 17-425 Xue v. Sessions BIA Poczter, IJ A202 134 546 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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17-425
Xue v. Sessions
BIA
Poczter, IJ
A202 134 546
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 2nd day of August, two thousand eighteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DENNIS JACOBS,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 LIXIONG XUE,
14 Petitioner,
15
16 v. 17-425
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Holly M. Smith,
27 Senior Litigation Counsel; Jesse
28 D. Lorenz, Trial Attorney, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
32
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Lixiong Xue, a native and citizen of the
6 People’s Republic of China, seeks review of a January 26,
7 2017, decision of the BIA affirming an April 4, 2016, decision
8 of an Immigration Judge (“IJ”) denying asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Lixiong Xue, No. A202 134 546 (B.I.A. Jan.
11 26, 2017), aff’g No. A202 134 546 (Immig. Ct. N.Y. City Apr.
12 4, 2016). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the IJ’s decision as supplemented by the BIA. Yan Chen v.
16 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
17 standards of review are well established. See 8 U.S.C.
18 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-
19 66 (2d Cir. 2008).
20 “Considering the totality of the circumstances, and all
21 relevant factors, a trier of fact may base a credibility
22 determination on the demeanor, candor, or responsiveness of
2
1 the applicant or witness, the inherent plausibility of the
2 applicant’s or witness’s account, the consistency between the
3 applicant’s or witness’s written and oral statements . . . ,
4 the internal consistency of each such statement, [and] the
5 consistency of such statements with other evidence of record
6 . . . without regard to whether an inconsistency, inaccuracy,
7 or falsehood goes 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-
9 64. Substantial evidence supports the agency’s determination
10 that Xue was not credible as to his claims that officials
11 beat and detained him for attending an unregistered church in
12 China and that he feared similar harm in the future.
13 The agency reasonably relied in part on Xue’s hesitant
14 and vague testimony. See 8 U.S.C. § 1158(b)(1)(B)(iii);
15 Majidi v. Gonzales,
430 F.3d 77, 81 n.1 (2d Cir. 2005); Jin
16 Shui Qiu v. Ashcroft,
329 F.3d 140, 152 (2d Cir. 2003) (“Where
17 an applicant gives very spare testimony, . . . the IJ . . .
18 may fairly wonder whether the testimony is fabricated . . .
19 [and] may wish to probe for incidental details.”), overruled
20 in part on other grounds by Shi Liang Lin v. U.S. Dep’t of
21 Justice,
494 F.3d 296, 305 (2d Cir. 2007). The demeanor
22 finding is supported by the record, which reflects that Xue
3
1 was repeatedly prompted for more details, but could not
2 provide many. There is no merit to Xue’s argument that his
3 vague testimony was caused by translation errors. The IJ
4 identified one fragmented sentence that was a result of
5 translation error and corrected a few words that were
6 mistranslated, and did not rely on those minor errors to
7 question Xue’s demeanor.
8 The demeanor finding and the overall credibility
9 determination are bolstered by record inconsistencies. See
10 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d
11 Cir. 2006). For example, Xue provided dramatically
12 different accounts of the beatings he claimed to have
13 suffered. See
Majidi, 430 F.3d at 79-80. In his written
14 statements and during his testimony on direct and cross-
15 examination, Xue stated that he was beaten “many times” and
16 described three specific instances that occurred during the
17 course of a year. However, at the end of his hearing, when
18 the IJ asked him whether “many times” meant approximately
19 5, 10, or 100 times, Xue estimated that he had been beaten
20 “more than 50 times” in one year. See 8 U.S.C.
21 § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 166-67 &
22 n.3. The IJ was not compelled to credit Xue’s explanation
4
1 that he could not remember the exact number of beatings
2 because it did not explain why he could not have estimated
3 or described the sheer volume of attacks. See Majidi, 430
4 F.3d at 80 (“A petitioner must do more than offer a
5 plausible explanation for his inconsistent statements to
6 secure relief; he must demonstrate that a reasonable fact-
7 finder would be compelled to credit his testimony.”
8 (internal quotations omitted)).
9 The agency also reasonably relied on the following
10 inconsistencies: Xue’s testimony that he was not required
11 to report to court in China was inconsistent with a
12 certificate releasing him on bail pending criminal trial;
13 and his testimony that he dislocated his shoulder was
14 inconsistent with his medical records indicating that he
15 suffered a fracture. Xue could not explain these
16 discrepancies.
17 Having questioned Xue’s credibility, the agency
18 reasonably relied further on his failure to rehabilitate
19 his testimony with reliable corroborating evidence. “An
20 applicant’s failure to corroborate his or her testimony may
21 bear on credibility, because the absence of corroboration
22 in general makes an applicant unable to rehabilitate
5
1 testimony that has already been called into question.”
2 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
3 The IJ reasonably found that Xue’s evidence did not
4 corroborate his testimony regarding the harm he suffered
5 and feared at the hands of village officials because his
6 proffered witness did not have knowledge of events in China
7 and his evidence from those who did have knowledge was
8 inconsistent with his testimony.
9 Given Xue’s demeanor, inconsistent statements and
10 evidence, and lack of corroboration, the agency’s adverse
11 credibility determination is supported by substantial
12 evidence.* See 8 U.S.C. § 1158(b)(1)(B)(iii). Contrary to
13 Xue’s argument, the credibility determination was
14 dispositive of both his claims of past harm and fear of
* The IJ may have erred in relying on Xue’s mother’s failure
to mention in her letter that she witnessed village officials
beat her son in their home, that she took him to the hospital,
and that he was beaten approximately 50 times because the
letter did not create any inconsistencies but was simply
vague. See Hong Fei Gao, 891 F.3d at 81. Nevertheless, the
other record inconsistencies along with Xue’s dramatically
differing accounts of past harm constituted substantial
evidence in support of the adverse credibility determination.
See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339
(2d Cir. 2006) (providing that the Court need not remand
despite error in an adverse credibility determination if it
“can state with confidence that the same decision would be
made on remand.”).
6
1 future persecution. In his asylum application, Xue
2 asserted a fear that village officials would beat him in
3 the future because they had done so in the past. And he
4 did not testify to any fear of future harm in China or any
5 basis for such fear except his past encounters with village
6 officials. Accordingly, because Xue’s claims of past harm
7 and fear of future harm were based on the same factual
8 predicate and evidence, the adverse credibility
9 determination was dispositive of asylum, withholding of
10 removal, and CAT relief. See Paul v. Gonzales, 444 F.3d
11 148, 156-57 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of removal
14 that the Court previously granted in this petition is VACATED,
15 and any pending motion for a stay of removal in this petition
16 is DISMISSED as moot. Any pending request for oral argument
17 in this petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe
22 Clerk of Court
7
