Xie v. Lynch , 657 F. App'x 73 ( 2016 )

15-3550
Xie v. Lynch
BIA
Segal, IJ
A205 027 476
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 1st day of November, two thousand sixteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 YUNFENG XIE,
14 Petitioner,
15
16 v. 15-3550
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Khaghendra Gharti-Chhetry, New
24 York, N.Y.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Edward
28 E. Wiggers, Senior Litigation
29 Counsel; Matthew A. Connelly, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 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 is
4 DENIED.
5 Petitioner Yunfeng Xie, a native and citizen of the
6 People’s Republic of China, seeks review of an October 6, 2015,
7 decision of the BIA, affirming a January 9, 2014, decision of
8 an Immigration Judge (“IJ”) denying Xie’s application for
9 asylum, withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Yunfeng Xie, No. A205 027 476
11 (B.I.A. Oct. 6, 2015), aff’g No. A205 027 476 (Immig. Ct. N.Y.
12 City Jan. 9, 2014). We assume the parties’ familiarity with
13 the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and BIA’s decisions. Guan v. Gonzales, 432 F.3d 391,
16 394 (2d Cir. 2005). The applicable standards of review are well
17 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
18 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
19 For asylum applications like Xie’s, governed by the REAL
20 ID Act, the agency may, “[c]onsidering the totality of the
21 circumstances,” base a credibility finding on an asylum
22 applicant’s “demeanor, candor, or responsiveness,” and
2
1 inconsistencies in his statements, “without regard to whether”
2 those inconsistencies go “to the heart of the applicant’s
3 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d
4 at 163-64. “We defer . . . to an IJ’s credibility determination
5 unless, from the totality of the circumstances, it is plain that
6 no reasonable fact-finder could make such an adverse
7 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. As
8 discussed below, the adverse credibility determination rests
9 on substantial evidence. Id. at 165.
10 The agency reasonably rested its credibility determination
11 on inconsistencies concerning the day of the month Xie was
12 supposed to pay the police protection fee, an event central to
13 his claim of persecution. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
14 Xia Lin, 534 F.3d at 167; see also Ye v. Dep’t of Homeland Sec.,
15 446 F.3d 289, 295 (2d Cir. 2006) (holding that material
16 inconsistency related to example of alleged persecution is
17 substantial evidence). Xie testified that the fee was due on
18 the 28th of each month. When confronted with the collection
19 notice in the record reflecting that the fee was due on the 5th
20 of each month, Xie responded, “Well, I forgot. It was a long
21 time ago.” The IJ was not required to credit Xie’s explanation
22 that his memory had faded given that the fee was pivotal to his
3
1 claim. “A petitioner must do more than offer a plausible
2 explanation for his inconsistent statements to secure relief;
3 he must demonstrate that a reasonable fact-finder would be
4 compelled to credit his testimony.” Majidi v. Gonzales, 430
5 F.3d 77, 80 (2d Cir. 2005) (quotation marks omitted).
6 The agency also reasonably relied on inconsistencies
7 concerning the date Xie’s wife paid the fine to secure his
8 release from custody. Xiu Xia Lin, 534 F.3d at 167. Xie
9 testified that he was first arrested in January 2010, and that
10 his wife paid 8,000 yuan for his release. On cross examination,
11 however, Xie testified that his wife paid the fine two years
12 earlier, in January 2008. He then confirmed that 2008 was the
13 correct date. When confronted with the fine receipt dated
14 January 8, 2010, Xie said that his testimony was wrong, and
15 asserted that the “back and forth” questioning confused him.
16 Xie’s explanation on appeal—that he “clearly testified that the
17 fine was paid after his first arrest”—does not account for the
18 inconsistent dates he provided regarding that arrest. See
19 Majidi, 430 F.3d at 80.
20 The adverse credibility determination is further supported
21 by inconsistencies concerning the date Xie received medical
22 treatment. Xiu Xia Lin, 534 F.3d at 167. Xie’s testimony on
4
1 this point again called into question his first arrest. He
2 testified that he received medical treatment in January 2008,
3 following his first arrest. When asked whether he sought
4 medical treatment in January 2010 (which, according to his
5 application and previous testimony, was the actual date of his
6 first arrest), the record reflects a long pause. Xie then
7 corrected himself and stated that he sought medical treatment
8 in January 2010. Xie again professed confusion based on the
9 “back and forth” questioning. The IJ was not required to credit
10 this explanation because it does not explain why Xie could not
11 remember when events occurred. See Majidi, 430 F.3d at 80.
12 Given the multiple inconsistencies concerning matters
13 central to Xie’s claim of persecution, it cannot be said “that
14 no reasonable fact-finder could make such a credibility
15 ruling.” Xiu Xia Lin, 534 F.3d at 167. That finding is
16 dispositive of asylum, withholding of removal, and CAT relief
17 because all three claims were based on the same factual
18 predicate. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
19 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED.
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
5