12-4621
Xu v. Lynch
BIA
Nelson, IJ
A094 824 812
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 25th day of November, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 YINGYU XU,
14 Petitioner,
15
16 v. 12-4621
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lewis G. Hu, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Anthony P. Nicastro, Senior
27 Litigation Counsel; D. Nicholas
28 Harling, 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 Yingyu Xu, a native and citizen of China, seeks review
6 of an October 26, 2012, order of the BIA, affirming the
7 February 18, 2011, decision of an Immigration Judge (“IJ”),
8 denying asylum, withholding of removal, and relief under the
9 Convention Against Torture (“CAT”). In re Yingyu Xu, No.
10 A094 824 812 (B.I.A. Oct. 26, 2012), aff’g No. A094 824 812
11 (Immig. Ct. New York City Feb. 18, 2011). We assume the
12 parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we review the
15 IJ’s decision as modified by the BIA, i.e., minus the bases
16 for the IJ’s credibility determination that the BIA
17 expressly declined to consider. See Xue Hong Yang v. U.S.
18 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); see also
19 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
20 The applicable standards of review are well established.
21 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
22 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
23
2
1 For applications such as Xu’s, which are governed by
2 the REAL ID Act, the agency may base a credibility finding
3 on an applicant’s demeanor, the plausibility of her account,
4 and inconsistencies in her statements, without regard to
5 whether they go “to the heart of the applicant’s claim.” 8
6 U.S.C. § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N.
7 Dec. 260, 265 (B.I.A. 2007). “We defer [] to an IJ’s
8 credibility determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder
10 could make such an adverse credibility ruling.” Xiu Xia
11 Lin, 534 F.3d at 167.
12 Initially, Xu does not contest the agency’s reliance on
13 the inconsistency between her application and testimony
14 about whether police confiscated materials from her pastor’s
15 home during the raid on her underground church. That
16 inconsistency stands as a proper basis for the credibility
17 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Shunfu Li
18 v. Mukasey, 529 F.3d 141, 146-47 (2d Cir. 2008).
19 The agency also properly relied on Xu’s hesitant,
20 fidgety, and non-responsive demeanor in finding her not
21 credible. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Tu
22 Lin v. Gonzales, 446 F.3d 395, 400-01 (2d Cir. 2006)
3
1 (“Demeanor is virtually always evaluated subjectively and
2 intuitively, and an IJ therefore is accorded great deference
3 . . . .”) (citations omitted)). The record reflects that Xu
4 testified hesitantly or evasively on several occasions. It
5 further reflects that she became hesitant and fidgety when
6 asked what family planning officials had done to harass her
7 and that she took an extremely long time to answer this
8 simple question. The IJ was not compelled to credit Xu’s
9 explanations that she had a headache and was car sick,
10 explanations contradicted by her attorney, who consulted
11 with Xu off the record, and told the IJ that Xu was merely
12 nervous. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
13 Cir. 2005) (explaining that an IJ need not credit an
14 applicant’s explanations for inconsistencies in the record
15 unless a reasonable fact-finder would be compelled to do
16 so). The agency also was not compelled to credit Xu’s
17 explanation that she was nervous. See id.; cf. Ming Zhang
18 v. Holder, 585 F.3d 715, 725 (2d Cir. 2009). We decline to
19 consider in the first instance Xu’s unexhausted arguments
20 that her negative demeanor was the result of her poor
21 education, an unspecified emotional problem, and the use of
22 two different interpreters. See Lin Zhong v. U.S. Dep’t of
23 Justice, 480 F.3d 104, 107 n.1, 120-23 (2d Cir. 2007).
4
1 Given Xu’s inconsistent testimony and demeanor, the
2 totality of the circumstances supports the agency’s adverse
3 credibility determination. See Xiu Xia Lin, 534 F.3d at
4 167; see also Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d
5 99, 109 (2d Cir. 2006) (“We can be still more confident in
6 our review of observations about an applicant’s demeanor
7 where, as here, they are supported by specific examples of
8 inconsistent testimony.”). The agency therefore did not err
9 in denying asylum, withholding of removal and CAT relief,
10 because all claims shared the same factual predicate.* See
11 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
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
*
The BIA incorrectly concluded that Xu failed to
exhaust a challenge to the IJ’s denial of CAT relief.
The IJ’s only basis for denying CAT relief was the
adverse credibility determination; so Xu’s challenge to
the credibility determination constituted a challenge to
the denial of that form of relief.
5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
6