12-4043
Guo v. Holder
BIA
Poczter, IJ
A200 930 255
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 2nd day of May, two thousand fourteen.
PRESENT:
JOSÉ A. CABRANES,
SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
PING GUO,
Petitioner,
v. 12-4043
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: David A. Bredin, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Linda S. Wernery, Assistant
Director; William C. Minick, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DISMISSED in part and DENIED in part.
Ping Guo, a native and citizen of China, seeks review
of a September 20, 2012 decision of the BIA affirming the
July 13, 2011 decision of an Immigration Judge (“IJ”), which
denied her application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In
re Ping Guo, No. A200 930 255 (B.I.A. Sept. 20, 2012), aff’g
No. 200 930 255 (Immig. Ct. N.Y. City July 13, 2011). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified and supplemented by the BIA.
See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271
(2d Cir. 2005). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
I. Asylum
We dismiss the petition to the extent Guo challenges
the pretermission of her asylum application as untimely.
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Title 8, Section 1158(a)(3) of the United States Code
provides that no court shall have jurisdiction to review the
agency’s finding under 8 U.S.C. § 1158(a)(2)(B) that an
asylum application was untimely. Although we retain
jurisdiction to review “constitutional claims or questions
of law,” 8 U.S.C. § 1252(a)(2)(D), we lack jurisdiction to
review the denial of Guo’s asylum application because Guo
challenges only the IJ’s factual findings as to the
credibility of her testimony regarding the timing of her
arrival in the United States.
II. Adverse Credibility Determination
To the extent Guo challenges the agency’s denial of
withholding of removal and CAT relief on credibility
grounds, we deny the petition. For applications such as
Guo’s, which are governed by the REAL ID Act of 2005, the
agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on an applicant’s
“demeanor, candor, or responsiveness,” the plausibility of
her account, and inconsistencies in her statements, without
regard to whether they go “to the heart of the applicant’s
claim.” 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)
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(per curiam). We “defer . . . to an IJ’s credibility
determination unless, from the totality of the
circumstances, it is plain that no reasonable fact-finder
could make such an adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
The agency reasonably based its adverse credibility
determination on Guo’s demeanor and the internal
inconsistencies in her testimony regarding the length of her
trip from China to the United States, whether she was
interviewed by an asylum officer, the number of security
guards that allegedly beat her, and whether she was
interrogated. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 167 (noting that, post-REAL ID Act, “an IJ
may rely on any inconsistency or omission in making an
adverse credibility determination as long as the ‘totality
of the circumstances’ establishes that an asylum applicant
is not credible” (emphasis in original)).
Contrary to Guo’s argument that the discrepancies
relied on by the agency were minor and therefore
insufficient, the inconsistencies regarding the beating and
interrogation relate to the sole basis of Guo’s claim that
she was persecuted in China for her Christian activities,
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and alone could constitute substantial evidence in support
of the adverse credibility determination. See Xian Tuan Ye
v. DHS, 446 F.3d 289, 295-96 (2d Cir. 2006) (per curiam).
Moreover, the BIA reasonably declined to credit Guo’s
explanation that stress, confusion, the passage of time, and
lack of education caused the inconsistencies. See Majidi v.
Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (the agency need
not credit an applicant’s explanations for inconsistent
testimony unless those explanations would compel a
reasonable fact-finder to do so).
Given the inconsistencies and the demeanor finding, the
totality of the circumstances supports the agency’s adverse
credibility determination. See 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d
at 167. Because the strength of the only evidence of a
threat to Guo’s life or freedom depended upon her
credibility, the adverse credibility determination in this
case necessarily precludes Guo’s success on her claims for
withholding of removal and CAT relief and the agency did not
err in failing to provide a separate CAT analysis. See Paul
v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang
v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
We lack jurisdiction to consider Guo’s allegations of
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ineffective assistance of counsel as they were not raised
before the BIA. See Garcia-Martinez v. Dep’t of Homeland
Sec., 448 F.3d 511, 513-14 (2d Cir. 2006); Arango-Aradondo
v. INS, 13 F.3d 610, 614-15 (2d Cir. 1994).
For the foregoing reasons, the petition for review is
DISMISSED in part, and DENIED in part.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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