12-645
Lu v. Holder
BIA
Cheng, IJ
A089 113 956
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 15th day of July, two thousand thirteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 YONG F. LU, AKA YONG FENG LU,
14 Petitioner,
15
16 v. 12-645
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Richard Tarzia, Belle Mead, N.J.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; James A. Hunolt,
27 Senior Litigation Counsel; David
28 Schor, 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 Yong F. Lu, a native and citizen of the People’s
6 Republic of China, seeks review of a January 20, 2012,
7 decision of the BIA affirming the April 16, 2010, decision
8 of Immigration Judge (“IJ”) Mary Cheng, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Yong F.
11 Lu, No. A089 113 956 (B.I.A. Jan. 20, 2012), aff’g No. A089
12 113 956 (Immig. Ct. N.Y. City Apr. 16, 2010). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
20 510, 513 (2d Cir. 2009). For applications such as Lu’s,
21 governed by the amendments to the Immigration and
22 Nationality Act by the REAL ID Act of 2005, the agency may,
23 considering the totality of the circumstances, base a
2
1 credibility determination on the “demeanor, candor, or
2 responsiveness of the applicant[, and] the consistency of
3 [the applicant’s] statements with other evidence of record
4 [], without regard to whether an inconsistency, inaccuracy,
5 or falsehood goes to the heart of the applicant’s claim.”
6 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v.
7 Mukasey, 534 F.3d 162, 166-67 (2d Cir. 2008) (per curiam).
8 Lu challenges the agency’s adverse credibility
9 determination, which was based on his demeanor, inconsistent
10 testimony, application omissions, and insufficient
11 corroboration. Initially, as Lu does not allege that the
12 demeanor findings were based on a misstatement in the
13 record, cf. Li Zu Guan v. INS, 453 F.3d 129, 139-40 (2d Cir.
14 2006), we defer to the agency’s determination that his
15 testimony was “non-responsive, evasive, and rehearsed,” see
16 Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d
17 Cir. 2005); Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d
18 99, 109 (2d Cir. 2006).
19 Moreover, contrary to Lu’s contention, the agency
20 reasonably relied on his inconsistent testimony about the
21 alleged beating he sustained during his detention, as he
22 stated during his credible fear interview that police
3
1 officers grabbed a folding chair and hit him with it, but he
2 failed to include that information in his testimony, even
3 after prompting by the IJ. See Xiu Xia Lin, 534 F.3d at
4 166-67; Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.
5 2005). In addition, the agency did not err in finding that
6 an omission in Jiang’s application – that his beating
7 required medical attention – was sufficiently dramatic as to
8 undermine his credibility. See Xiu Xia Lin, 534 F.3d at
9 167; Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111-12 (2d Cir.
10 2005). The agency did not err in declining to credit Lu’s
11 explanations that he initially misunderstood some of the
12 questions, and that he did not believe the medical records
13 were important for his claim. See Majidi, 430 F.3d at 80-81
14 (“A petitioner must do more than offer a plausible
15 explanation for his inconsistent statements to secure
16 relief; he must demonstrate that a reasonable fact-finder
17 would be compelled to credit his testimony.” (emphasis
18 retained) (internal citation and quotation marks omitted)).
19 Finally, the agency reasonably concluded that Lu failed
20 to rehabilitate his testimony as he did not produce any
21 evidence to corroborate his claim that he received medical
22 treatment upon his release from detention. See Biao Yang v.
4
1 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per curiam);
2 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d
3 Cir. 2006).
4 As Lu does not allege an independent factual predicate
5 for relief apart from his non-credible testimony, and as the
6 only evidence of a threat to his life or freedom depended on
7 his credibility, the adverse credibility determination in
8 this case is dispositive of his claims for asylum,
9 withholding of removal, and CAT relief. See Paul v.
10 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
11 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
5