Filed: Nov. 10, 2014
Latest Update: Mar. 02, 2020
Summary: 13-1937 Lu v. Holder BIA Christensen, IJ A200 924 659 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 N
Summary: 13-1937 Lu v. Holder BIA Christensen, IJ A200 924 659 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 NO..
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13-1937
Lu v. Holder
BIA
Christensen, IJ
A200 924 659
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 10th day of November, two thousand fourteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 XIN LU,
14 Petitioner,
15
16 v. 13-1937
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Xin Miao, Flushing, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Ernesto H. Molina, Jr.,
27 Assistant Director; Bernard Joseph,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Xin Lu, a native and citizen of China, seeks
6 review of an April 19, 2013 order of the BIA, affirming the
7 August 16, 2011 decision of an Immigration Judge (“IJ”),
8 which denied asylum, withholding of removal, and relief
9 under the Convention Against Torture (“CAT”). In re Xin Lu,
10 No. A200 924 659 (B.I.A. April 19, 2013), aff’g No. A200 924
11 659 (Immig. Ct. N.Y. City Aug. 16, 2011). We assume the
12 parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we review the
15 IJ’s decision as supplemented by the BIA. See 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); see also Yanqin Weng v. Holder,
562 F.3d
19 510, 513 (2d Cir. 2009).
20 For applications such as Lu’s, which are governed by
21 the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231,
22 the agency may base a credibility finding on an applicant’s
23 demeanor, the plausibility of his account, and
2
1 inconsistencies in his statements, without regard to whether
2 they go “to the heart of the applicant’s claim.” 8 U.S.C. §
3 1158(b)(1)(B)(iii). “We defer therefore to an IJ’s
4 credibility determination unless, from the totality of the
5 circumstances, it is plain that no reasonable fact-finder
6 could make such an adverse credibility ruling.” Xiu Xia Lin
7 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).
8 Here, the IJ’s adverse credibility determination is
9 supported by substantial evidence. The IJ reasonably based
10 his credibility finding on Lu’s non-responsive answers to
11 questions concerning Lu’s relationship with his aunt and the
12 difference between government and underground churches. See
13 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin,
14 534 F.3d at 167. While Lu takes issue with the IJ’s
15 characterization of his testimony as non-responsive, the
16 IJ’s findings are clearly supported by the hearing
17 transcript. Moreover, the IJ was not required to credit
18 Lu’s explanation that he was either confused or
19 misunderstood the relevant questions. See Majidi v.
20 Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005) (providing that
21 the agency need not credit an applicant’s explanations for
22
3
1 inconsistent testimony unless those explanations would
2 compel a reasonable fact-finder to do so).
3 The IJ also reasonably relied on inconsistencies
4 between Lu’s testimony and the documentary evidence. See 8
5 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin,
6 534 F.3d at 167. Lu’s testimony that a fellow underground
7 church attendee opened the door for police officers during a
8 May 2009 underground church service was contrary to a
9 statement in his asylum application that police officers
10 broke down the door before arresting those in attendance.
11 Lu also testified that he first learned that his aunt was
12 Christian when he saw a Bible in her home in 2004, several
13 months after Lu’s uncle had returned home from the hospital.
14 However, Lu stated in his asylum application that his uncle
15 returned home from the hospital in 2003. The IJ was not
16 required to credit Lin’s explanations for these
17 inconsistencies. See
Majidi, 430 F.3d at 80-81.
18 Lu argues that the IJ should have permitted his witness
19 to correct testimony that was inconsistent with Lu’s own
20 testimony. However, the BIA reasonably exercised its “broad
21 discretion” to deny remand on the basis of the witness’s
22 affidavit because the affidavit related to only one of the
4
1 credibility finding and therefore would not have altered the
2 outcome of the case. See Li Yong Cao v. U.S. Dep’t of
3 Justice, 421 F.3d 149, 156 (2d Cir. 2005). Given Lu’s
4 inconsistent and non-responsive testimony, the totality of
5 the circumstances support the agency’s adverse credibility
6 determination. See Xiu Xia
Lin, 534 F.3d at 167.
7 Finally, contrary to Lu’s argument on appeal, the
8 agency did not err in denying Lu’s claim for CAT relief
9 without conducting an independent analysis. Because the
10 only evidence that Lu was likely to be tortured depended on
11 his credibility, the IJ’s adverse credibility determination
12 necessarily precludes success on a claim for CAT relief.
13 See Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d 520,
14 523 (2d Cir. 2005); cf. Ramsameachire v. Ashcroft,
357 F.3d
15 169, 184-85 (2d Cir. 2004) (holding that the agency may not
16 deny a CAT claim solely on the basis of an adverse
17 credibility finding made in the asylum context, where the
18 CAT claim did not turn on credibility).
19 For the foregoing reasons, the petition for review
20 is DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
22 is VACATED, and any pending motion for a stay of removal in
23 this petition is DISMISSED as moot. Any pending request for
5
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
6
