Filed: Jul. 07, 2015
Latest Update: Mar. 02, 2020
Summary: 12-3730 Luo v. Lynch BIA Mulligan, IJ A087 634 291 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
Summary: 12-3730 Luo v. Lynch BIA Mulligan, IJ A087 634 291 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 NOTAT..
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12-3730
Luo v. Lynch
BIA
Mulligan, IJ
A087 634 291
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 7th day of July, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 PETER W. HALL,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 AN QIANG LUO,
14 Petitioner,
15
16 v. 12-3730
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: David J. Rodkin, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Stephen J. Flynn, Assistant
27 Director; Arthur L. Rabin, Attorney,
28 Office of Immigration Litigation,
29 United States Department of Justice,
30 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 An Qiang Luo, a native and citizen of the People’s
6 Republic of China, seeks review of an August 24, 2012,
7 decision of the BIA affirming the December 9, 2010, decision
8 of an Immigration Judge (“IJ”) which denied his application
9 for asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re An Qiang Luo, No.
11 A087 634 291 (B.I.A. Aug. 24, 2012), aff’g No. A087 634 291
12 (Immig. Ct. N.Y. City Dec. 9, 2010). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have
16 considered both the IJ’s and the BIA’s opinions “for the
17 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
18 (2d Cir. 2008). The applicable standards of review are well
19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
20 Holder,
562 F.3d 510, 513 (2d Cir. 2009).
21 For asylum applications, like Luo’s, governed by the
22 REAL ID Act of 2005, the agency may, “[c]onsidering the
23 totality of the circumstances,” base a credibility finding
2
1 on an asylum applicant’s “demeanor, candor, or
2 responsiveness,” the plausibility of his account, and
3 inconsistencies in his statements, “without regard to
4 whether” they go “to the heart of the applicant’s claim,” so
5 long as they reasonably support an inference that the
6 applicant is not credible. 8 U.S.C. § 1158(b)(1)(B)(iii);
7 see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)
8 (per curiam). We “defer . . . to an IJ’s credibility
9 determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make such an adverse credibility ruling.” Xiu Xia
12
Lin, 534 F.3d at 167. In this case, the agency reasonably
13 based its adverse credibility determination on the
14 inconsistencies in Luo’s evidence, his lack of plausible
15 explanation for those inconsistencies, and his demeanor.
16 The IJ reasonably found that Luo was not credible
17 because his testimony was inconsistent with statements in
18 his asylum application, which in turn were inconsistent with
19 his statements at his asylum interview. Luo’s contradictory
20 descriptions about the harm he suffered in China as a child,
21 the fact that he could not give details about the articles
22 he published despite claiming to be a strong political
3
1 activist, and the fact that his copies of those articles did
2 not support his claim that they were published with his
3 photographs, provide substantial evidence to support the
4 agency’s adverse credibility determination. The
5 discrepancies relate directly to Luo’s allegations of past
6 and future harm. See Xiu Xia Lin, 534 F.3d at 166, 167.
7 Furthermore, Luo failed to adequately account for the
8 discrepancies between his testimony and the other evidence
9 in the record; he did not deny that there were
10 inconsistencies and his explanation for his lack of
11 knowledge of the articles–that he cut and pasted the
12 information–further undermined his claim that he is a
13 political activist. See Majidi v. Gonzales,
430 F.3d 77,
14 80-81 (2d Cir. 2005) (agency need not credit explanations
15 for inconsistent testimony unless those explanations would
16 compel a reasonable fact-finder to do so).
17 The adverse credibility determination is further
18 supported by the IJ’s demeanor finding to which we give
19 particular deference as it is supported by the inconsistent
20 testimony noted above. See Jin Chen v. U.S. Dep’t of
21 Justice,
426 F.3d 104, 113 (2d Cir. 2005); Li Hua Lin v.
22 U.S. Dep’t of Justice,
453 F.3d 99, 109 (2d Cir. 2006).
4
1 Given the unexplained inconsistencies related to the
2 bases of the claims of past and future persecution, the
3 totality of the circumstances supports the agency’s adverse
4 credibility determination, and we defer to that finding.
5 See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at
6 167. Because the only evidence of a threat to Luo’s life or
7 freedom depended upon his credibility, the adverse
8 credibility determination in this case necessarily precludes
9 success on his claims for asylum, withholding of removal,
10 and CAT relief. See Paul v. Gonzales,
444 F.3d 148, 156-57
11 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
18
5
