Xian Xin Ye v. Lynch

13-2703 Ye v. Lynch BIA Cheng, IJ A087 532 046 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 fourteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 REENA RAGGI, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _____________________________________ 12 13 XIAN XIN YE, 14 Petitioner, 15 16 v. 13-2703 17 NAC 18 LORETTA E. LYNCH, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent.1 21 _____________________________________ 22 23 FOR PETITIONER: Michael Brown, New York, NY. 24 25 1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is automatically substituted for former Attorney General Eric H. Holder, Jr. 1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 2 General; Russell J. E. Verby, Senior 3 Litigation Counsel; John D. 4 Williams, Trial Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, D.C. 8 UPON DUE CONSIDERATION of this petition for review of a 9 decision of the Board of Immigration Appeals (“BIA”), it is 10 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 11 review is DENIED. 12 Xian Xin Ye, a native and citizen of China, seeks 13 review of a June 28, 2013, decision of the BIA affirming an 14 Immigration Judge’s (“IJ”) December 6, 2011, denial of 15 asylum, withholding of removal, and relief under the 16 Convention Against Torture (“CAT”). In re Xian Xin Ye, No. 17 A087 532 046 (B.I.A. Jun. 28, 2013), aff’g No. A087 532 046 18 (Immig. Ct. N.Y. City Dec. 6, 2011). We assume the parties’ 19 familiarity with the underlying facts and procedural history 20 of this case. 21 Under the circumstances of this case, we have reviewed 22 the IJ’s decision as supplemented by the BIA. See Islam v. 23 Gonzales, 469 F.3d 53, 55 (2d Cir. 2006). The applicable 24 standards of review are well established. See 8 U.S.C. 25 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165- 26 66 (2d Cir. 2008) (per curiam). 2 1 For applications, like Ye’s, governed by the REAL ID 2 Act, the agency may, “[c]onsidering the totality of the 3 circumstances,” base a credibility finding on demeanor and 4 responsiveness during questioning, as well as 5 inconsistencies in an applicant’s statements and other 6 record evidence “without regard to whether” they go “to the 7 heart of the applicant’s claim.” 8 U.S.C. 8 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163 n.2. 9 Here, substantial evidence supports the agency’s decision. 10 First, we defer to the IJ’s findings regarding 11 demeanor. The IJ concluded that Ye’s demeanor suggested he 12 was not testifying in a candid or forthright manner, because 13 he provided nonresponsive and evasive answers to 14 questioning. This finding is supported by the record and is 15 “paradigmatically the sort of evidence that a fact-finder is 16 best positioned to evaluate.” Li Zu Guan v. INS, 453 F.3d 17 129, 140 (2d Cir. 2006). 18 The adverse credibility determination is further 19 supported by inconsistencies in the record. First, Ye 20 testified that his religion was Falun Gong but, in his 21 application, he listed his religion as Buddhist. Ye also 22 wrote that he was involved in a Christian church. When 3 1 confronted with these discrepancies, Ye first responded that 2 he was Buddhist, but then stated that he had thought he was 3 being asked to identify his family’s religion. A reasonable 4 factfinder would not be compelled to credit these 5 explanations, as Ye reviewed his application before 6 submitting it and the question on his application was among 7 other questions regarding Ye’s personal information–-not 8 information about his family. See Majidi v. Gonzales, 430 9 F.3d 77, 80-81 (2d Cir. 2005). 10 Similarly, when confronted with the statements in his 11 application regarding his practice of Christianity, Ye said 12 that he did not know why his application included such 13 information, and testified that he had never participated in 14 any church. The agency was not compelled to credit this 15 explanation, as it did not explain why Christianity was 16 mentioned in his application. Id. at 80-81. Although Ye 17 argues that he remedied this inconsistency by submitting a 18 corrected application to the BIA, the BIA’s review of IJ 19 decisions is limited to the record before the IJ. 8 C.F.R. 20 § 1003.1(d)(3)(iv). In addition, when Ye submitted his 21 application, the IJ specifically asked whether any changes 22 were needed and Ye replied that they were not. Thus, the 4 1 agency properly relied on the inconsistency regarding Ye’s 2 faith. 3 The agency also reasonably relied on inconsistencies 4 involving the mistreatment Ye suffered when reporting to the 5 village cadres after his arrest. Ye testified that he 6 reported to the cadres eight or nine times, and was “hit 7 once but every time they insult me and yell at me.” When 8 confronted with a letter from his father, which stated that 9 Ye suffered “endless torture” and beatings each time he 10 reported, Ye changed his testimony to say he was hit lightly 11 every time, but seriously once. A reasonable factfinder 12 would not be compelled to credit Ye’s explanation that one 13 beating was more serious because Ye was not asked when he 14 was treated the most severely, rather, he was asked how 15 often he was “hit” by the authorities. 16 Considering the inconsistencies in the record regarding 17 Ye’s religion and his treatment by Chinese authorities, Ye’s 18 claim that he practiced Falun Gong and was persecuted on 19 account of that practice is called into question. 20 Consequently, the “totality of the circumstances” supports 21 the agency’s adverse credibility determination. See Xiu Xia 22 Lin, 534 F.3d at 167. Because all of Ye’s claims share the 23 same factual predicate, the adverse credibility 5 1 determination is dispositive of asylum, withholding of 2 removal, and CAT relief. Paul v. Gonzales, 444 F.3d 148, 3 155-57 (2d Cir. 2006). 4 For the foregoing reasons, the petition for review is 5 DENIED. 6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk 8 9 10 6