Ri Cui v. Lynch

13-3001 Cui v. Lynch BIA Schoppert, IJ A087 640 120 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 28th day of August, two thousand fifteen. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 RAYMOND J. LOHIER, JR., 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _______________________________________ 12 13 RI CUI, AKA MIN SOO JANG, 14 Petitioner, 15 16 v. 13-3001 17 NAC 18 LORETTA E. LYNCH, UNITED STATES 19 ATTORNEY GENERAL,* 20 Respondent. 21 _______________________________________ * 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 2 FOR PETITIONER: Jan Potemkin, New York, NY. 3 4 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 5 General; Ernesto H. Molina, Jr., 6 Assistant Director; Joanna L. 7 Watson, Trial Attorney, Office of 8 Immigration Litigation, United 9 States Department of Justice, 10 Washington, D.C. 11 12 UPON DUE CONSIDERATION of this petition for review of a 13 Board of Immigration Appeals (“BIA”) decision, it is hereby 14 ORDERED, ADJUDGED, AND DECREED that the petition for review 15 is DENIED. 16 Ri Cui, a native and citizen of the People’s Republic 17 of China, seeks review of an August 1, 2013, decision of the 18 BIA affirming the June 19, 2012, decision of Immigration 19 Judge (“IJ”) Douglas B. Schoppert, which denied his 20 application for asylum, withholding of removal, and relief 21 under the Convention Against Torture (“CAT”). In re Ri Cui, 22 No. A087 640 120 (B.I.A. Aug. 1, 2013), aff’g No. A087 640 23 120 (Immig. Ct. June 19, 2012). We assume the parties’ 24 familiarity with the underlying facts and procedural history 25 in this case. 26 Under the circumstances of this case, we have 27 considered both the IJ’s and the BIA’s opinions “for the 28 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 2 1 (2d Cir. 2008) (quotation marks omitted). The applicable 2 standards of review are well established. See 8 U.S.C. 3 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 4 (2d Cir. 2009). 5 Cui’s asylum application is governed by the REAL ID Act 6 of 2005. Accordingly, the agency may, “[c]onsidering the 7 totality of the circumstances,” base a credibility finding 8 on an asylum applicant’s “demeanor, candor, or 9 responsiveness,” the plausibility of his account, and 10 inconsistencies in his statements, without regard to whether 11 they go “to the heart of the applicant’s claim,” so long as 12 they reasonably support an inference that the applicant is 13 not credible. 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia 14 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). “We defer 15 . . . to an IJ’s credibility determination unless, from the 16 totality of the circumstances, it is plain that no 17 reasonable fact-finder could make such an adverse 18 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. In this 19 case, the agency reasonably based its adverse credibility 20 determination on the numerous inconsistencies in Cui’s 21 evidence, and the lack of a plausible explanation for those 22 inconsistencies. 3 1 The IJ found that Cui was not credible because he 2 provided an inconsistent account of when his North Korean 3 relatives came to China, when he arrived in the United 4 States, what injuries he sustained as a result of being 5 beaten while in custody, and the length of his detention. 6 Substantial evidence supports the IJ’s findings. 7 Furthermore, Cui was confronted with the inconsistencies as 8 he testified, and the agency reasonably found that he did 9 not adequately explain them. See Majidi v. Gonzales, 430 10 F.3d 77, 80-81 (2d Cir. 2005). 11 The totality of the circumstances supports the agency’s 12 adverse credibility determination, based on the 13 inconsistencies in Cui’s evidence and his lack of credible 14 explanation. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 15 Lin, 534 F.3d at 167. Because the only evidence of a threat 16 to Cui’s life or freedom depended upon his credibility, the 17 adverse credibility finding defeats his claims for asylum, 18 withholding of removal, and CAT relief. See Paul v. 19 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 20 For the foregoing reasons, the petition for review is 21 DENIED. 22 FOR THE COURT: 23 Catherine O’Hagan Wolfe, Clerk 24 4