Filed: May 30, 2018
Latest Update: Mar. 03, 2020
Summary: 16-4124 Xiu v. Sessions BIA Loprest, IJ A206 141 848 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
Summary: 16-4124 Xiu v. Sessions BIA Loprest, IJ A206 141 848 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..
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16-4124
Xiu v. Sessions
BIA
Loprest, IJ
A206 141 848
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 30th day of May, two thousand eighteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 RICHARD C. WESLEY,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 ZHU XIU,
15 Petitioner,
16
17 v. 16-4124
18 NAC
19 JEFFERSON B. SESSIONS III,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gary J. Yerman, Yerman & Jia,
25 LLC, New York, NY.
26
27 FOR RESPONDENT: Jacob A. Bashyrov, Trial
28 Attorney, M. Jocelyn Lopez Wright,
29 Senior Litigation Counsel, Office
1 of Immigration Litigation, for
2 Chad A. Readler, Acting Assistant
3 Attorney General, Civil Division,
4 United States Department of
5 Justice, Washington, DC.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Zhu Xiu, a native and citizen of the People’s
12 Republic of China, seeks review of a November 17, 2016,
13 decision of the BIA affirming an October 6, 2015, decision of
14 an Immigration Judge (“IJ”) denying Xiu’s application for
15 asylum, withholding of removal, and relief under the
16 Convention Against Torture (“CAT”). In re Zhu Xiu, No. A 206
17 141 848 (B.I.A. Nov. 17, 2016), aff’g No. A 206 141 848
18 (Immig. Ct. N.Y.C. Oct. 6, 2015). We assume the parties’
19 familiarity with the underlying facts and procedural history
20 in this case.
21 We have reviewed the IJ’s decision as modified by the
22 BIA and address only the adverse credibility determination.
23 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
2
1 (2d Cir. 2005). The applicable substantial evidence standard
2 of review is well established. See 8 U.S.C. § 1252(b)(4)(B);
3 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008)
4 (per curiam). Substantial evidence supports the agency’s
5 determination that Xiu was not credible.
6 The agency reasonably relied on discrepancies between
7 Xiu’s testimony and her documentary evidence. First, the IJ
8 reasonably concluded that Xiu’s misrepresentation of a prior
9 attempt to leave China undermined her credibility as a whole.
10 See Siewe v. Gonzales,
480 F.3d 160, 170 (2d Cir. 2007).
11 Second, the IJ also reasonably relied on a discrepancy between
12 Xiu’s testimony and a letter from her father. See 8 U.S.C.
13 § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 167 (upholding
14 reliance on omissions and inconsistencies stemming from
15 letters). Moreover, the agency’s demeanor finding—to which
16 we defer—bolsters the adverse credibility determination. 8
17 U.S.C. § 1158(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t of
18 Justice,
453 F.3d 99, 109 (2d Cir. 2006). The record supports
19 the IJ’s conclusion that Xiu’s demeanor shifted on cross-
20 examination. See Xusheng Shi v. BIA,
374 F.3d 64, 66 (2d
3
1 Cir. 2004) (per curiam) (upholding IJ’s finding that
2 generalized or non-responsive answers reflected memorized
3 script). Finally, the agency reasonably found that Xiu
4 failed to rehabilitate her testimony with reliable
5 corroborating evidence. Biao Yang v. Gonzales, 496 F.3d 268,
6 273 (2d Cir. 2007) (per curiam).
7 Given these findings, substantial evidence supports the
8 adverse credibility determination. See 8 U.S.C.
9 § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 165-67. The
10 adverse credibility determination is dispositive of asylum,
11 withholding of removal, and CAT relief because all three
12 claims rely on Xiu’s credibility. See Paul v. Gonzales, 444
13 F.3d 148, 156-57 (2d Cir. 2006).
14 For the foregoing reasons, the petition for review is
15 DENIED. 1 As we have completed our review, any stay of removal
1 We observe that the decision of the IJ, although substantively
appropriate, incorrectly refers to petitioner Xiu as “Lin” or
“Liu” several times, marking each error with “[sic].” Out of
respect for those seeking relief under our immigration laws, who
potentially face a “severe penalty,” Sessions v. Dimaya, 138 S.
Ct. 1204, 1213 (2018) (internal quotation mark omitted), we
think that the better practice would be to make corrections. A
decision should be in the petitioner’s name. Leaving errors
uncorrected might give the impression, however unwarranted, that
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 DISMISSED as moot. Any pending request for oral argument
4 in 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,
9 Clerk of Court
10
less care was taken in reaching the decision than should have
been.
5
