11-4600                                                                        BIA
         Jiang v. Holder                                                       Balasquide, IJ
                                                                               A088 345 761


                             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 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 28th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                         GUIDO CALABRESI,
 8                         GERARD E. LYNCH,
 9                         RAYMOND J. LOHIER, JR.,
10                              Circuit Judges.
11
12
13       XIU YU JIANG,
14                Petitioner,
15
16                         v.                                   11-4600
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21
22
23       FOR PETITIONER:                Oleh R. Tustaniwsky, Brooklyn, NY.
24
25       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
26                                      Attorney General; Alison R. Drucker,
27                                      Senior Litigation Counsel; John W.
28                                      Blakeley, Senior Litigation Counsel;
29                                      Daniel C. Collier, Law Clerk, Office
30                                      of Immigration Litigation, United
31                                      States Department of Justice,
32                                      Washington, D.C.
 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 Xiu Yu Jiang, a native and citizen of China,

 6   seeks review of an October 3, 2011, order of the BIA,

 7   affirming the March 1, 2010, decision of an Immigration

 8   Judge (“IJ”)denying her application for asylum, withholding

 9   of removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Xiu Yu Jiang, No. A088 345 761 (B.I.A. Oct.

11   3, 2011), aff’g No. A088 345 761 (Immig. Ct. New York City

, 2010).     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 decisions of both the IJ and the BIA.     See Yun-Zui Guan

16   v. Gonzales, 

, 394 (2d Cir. 2005) (per curiam).

17   For applications such as Jiang’s, which are governed by the

18   REAL ID Act, the agency may base a credibility finding on an

19   applicant’s demeanor, the plausibility of her account, and

20   inconsistencies in her statements, without regard to whether

21   they go “to the heart of the applicant’s claim.”     8 U.S.C. §

22   1158(b)(1)(B)(iii).    We “defer to an IJ’s credibility

23   determination unless, from the totality of the

24   circumstances, it is plain that no reasonable fact-finder

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 1   could make such an adverse credibility ruling.”     Xiu Xia Lin

 2   v. Mukasey, 

, 167 (2d Cir. 2008).

 3       Contrary to Jiang’s assertions, the agency reasonably

 4   found that she was not credible on the basis of

 5   inconsistencies within her testimony, and between her

 6   testimony and application statement, regarding the number,

 7   dates, and circumstances of her arrest(s) and the number of

 8   times she escaped arrest while distributing Falun Gong

 9   flyers.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

10   F.3d at 167.   Although Jiang argues that the agency

11   excessively relied on her inability to recall specific

12   dates, Jiang’s inconsistent testimony extended well beyond

13   dates and included the circumstances of her arrest and near

14   escape, as well as whether her second arrest and second near

15   escape occurred at all.     See Xiu Xia Lin, 534 F.3d at 167.

16       Moreover, while Jiang argues that she reasonably

17   explained that her memory troubles were due to her

18   depressive disorder and the anxiety caused by her biological

19   mother’s presence, the agency was not required to credit her

20   explanation as it would not necessarily be compelling to a

21   reasonable fact-finder.     See Majidi v. Gonzales, 

   77, 80-81 (2d Cir. 2005).    Indeed, the IJ reasonably noted

23   that Jiang provided inconsistent testimony on almost every


                                     3
 1   aspect of her claim, and her purported memory troubles do

 2   not adequately explain the pervasive inconsistencies in her

 3   testimony.   See Xiu Xia Lin, 534 F.3d at 167; Majidi, 430

 4   F.3d at 80-81.

 5       Jiang’s argument that the agency erred by ignoring a

 6   corroborative letter from her friend and fellow practitioner

 7   of Falun-Gong in China is also misplaced.   See Xiao Ji Chen

 8   v. Dep’t of Justice, 

, 337 n.17 (2d Cir. 2006)

 9   (presuming that the agency “has taken into account all of

10   the evidence before [it], unless the record compellingly

11   suggests otherwise”); see also Zhi Yun Gao v. Mukasey, 508

, 87 (2d Cir. 2007) (per curiam) (noting that the BIA

13   is not required to “expressly parse or refute on the record

14   each individual argument or piece of evidence offered by the

15   petitioner” (internal quotation marks omitted)).

16       Because we find the agency’s adverse credibility

17   determination supported by substantial evidence on the basis

18   of the above-identified inconsistencies, we decline to

19   consider Jiang’s argument that she adequately explained her

20   biological mother’s testimony that Jiang came to the United

21   States to reunite.

22       As the agency’s adverse credibility determination is

23   supported by substantial evidence, the agency’s denial of


                                   4
 1   Jiang’s application for asylum and withholding of removal

 2   was not in error as both claims shared the same factual

 3   predicate.     See Paul v. Gonzales, 

, 156 (2d Cir.

 4   2006).     Lastly, we decline to consider the agency’s denial

 5   of CAT relief because Jiang does not contest that finding in

 6   this Court.     See Yueqing Zhang v. Gonzales, 

,

 7   541 n.1, 545 n.7 (2d Cir. 2005).

 8       For the foregoing reasons, the petition for review is

 9   DENIED.     As we have completed our review, Jiang’s pending

10   motion for a stay of removal in this petition is DISMISSED

11   as moot.

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk
14
15




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