Shan Hui Xue v. Holder

13-2094 Xue v. Holder BIA Christensen, IJ A200 923 597 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 27th day of October, two thousand fourteen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 RICHARD C. WESLEY, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 SHAN HUI XUE, 14 Petitioner, 15 16 v. 13-2094 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Adedayo O. Idowu, New York, NY. 24 25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 26 General; Daniel E. Goldman, 27 Assistant Director; Mona Maria 28 Yousif, 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 decision of the Board of Immigration Appeals (“BIA”), it is 3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 4 review is DISMISSED in part and DENIED in part. 5 Shan Hui Xue, a native and citizen of China, seeks 6 review of an April 30, 2013, decision of the BIA affirming 7 an Immigration Judge’s (“IJ”) August 23, 2011, denial of 8 asylum, withholding of removal, and relief under the 9 Convention Against Torture (“CAT”). In re Shan Hui Xue, No. 10 A200 923 597 (B.I.A. Apr. 30, 2013), aff’g No. A200 923 597 11 (Immig. Ct. N.Y. City Aug. 23, 2011). We assume the 12 parties’ familiarity with the underlying facts and 13 procedural history of this case. 14 Under the circumstances of this case, we have reviewed 15 the IJ’s decision as modified by the BIA. See Xue Hong Yang 16 v. U.S. DOJ, 426 F.3d 520, 522 (2d Cir. 2005). The 17 applicable standards of review are well established. See 18 8 U.S.C. § 1252(b)(4)(B); see Yanqin Weng v. Holder, 562 19 F.3d 510, 513 (2d Cir. 2009). 20 Pursuant to 8 U.S.C. § 1158(a)(3), we lack jurisdiction 21 to review the agency’s determination that an asylum 22 application is untimely. See 8 U.S.C. § 1158(a)(2)(B). 23 Although we retain jurisdiction to review “constitutional 2 1 claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), Xue 2 challenges only the weight accorded certain evidence. 3 Accordingly, he has not raised a colorable question of law 4 or constitutional claim. We therefore dismiss the petition 5 as to asylum. 6 We do have jurisdiction to review the agency’s denial 7 of withholding of removal and CAT relief on credibility 8 grounds. For applications, like Xue’s, governed by the REAL 9 ID Act, the agency may, “[c]onsidering the totality of the 10 circumstances,” base a credibility finding on 11 inconsistencies in the applicant’s statements and other 12 record evidence “without regard to whether” those 13 inconsistencies go “to the heart of the applicant’s claim.” 14 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin 15 v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008) (per 16 curiam). Here, substantial evidence supports the agency’s 17 decision. 18 As Xue’s withholding of removal and CAT claims share 19 the same factual predicate, the adverse credibility 20 determination is dispositive of both. See Paul v. Gonzales, 21 444 F.3d 148, 155-57 (2d Cir. 2006). 22 3 1 For the foregoing reasons, the petition for review is 2 DISMISSED in part and DENIED in part. As we have completed 3 our review, any stay of removal that the Court previously 4 granted in this petition is VACATED, and any pending motion 5 for a stay of removal in this petition is DISMISSED as moot. 6 Any pending request for oral argument in this petition is 7 DENIED in accordance with Federal Rule of Appellate 8 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 12 13 4