15-855
He v. Lynch
BIA
Loprest, IJ
A087 434 520
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 16th day of August, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 GUO BIN HE,
14 Petitioner,
15
16 v. 15-855
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Mona Liza F. Lao, New York, New York.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Shelley
27 R. Goad, Assistant Director; Russell
28 J.E. Verby, Senior Litigation
29 Counsel, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 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 is
4 DENIED.
5 Petitioner Guo Bin He, a native and citizen of the People’s
6 Republic of China, seeks review of a February 23, 2015, decision
7 of the BIA affirming a May 31, 2013, decision of an Immigration
8 Judge (“IJ”) denying He’s application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Guo Bin He, No. A087 434 520 (B.I.A. Feb. 23,
11 2015), aff’g No. A087 434 520 (Immig. Ct. N.Y. City May 31,
12 2013). We assume the parties’ familiarity with the underlying
13 facts and procedural history in this case.
14 We have reviewed both the IJ’s and the BIA’s opinions.
15 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The
16 applicable standards of review are well established. See
17 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
18 165-66 (2d Cir. 2008). For asylum applications like He’s,
19 governed by the REAL ID Act, the agency may, “[c]onsidering the
20 totality of the circumstances . . . base a credibility
21 determination on the demeanor, candor, or responsiveness of the
22 applicant or witness, the inherent plausibility of the
23 applicant’s or witness’s account,” and inconsistencies in an
2
1 applicant’s statements and other record evidence “without
2 regard to whether” they go “to the heart of the applicant’s
3 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d
4 at 163-64. The agency’s adverse credibility determination is
5 based on substantial evidence.
6 The IJ reasonably relied on He’s admission, on cross
7 examination, that he fabricated the entire claim of past harm
8 that he provided during his credible fear interview. See Siewe
9 v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007); Xian Tuan Ye v.
10 DHS, 446 F.3d 289, 295 (2d Cir. 2006). Given He’s lie under
11 oath to avoid removal, the IJ was not required to credit He’s
12 explanation—that the smuggler told him to lie in order to stay
13 in the country, work, and pay the smuggler back. Siewe, 480
14 F.3d at 170; Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).
15 The IJ reasonably found that He’s hearing testimony and
16 that of his witness further undermined his credibility. He
17 testified he passed out flyers with his witness, but the witness
18 denied they had ever done so. The IJ was entitled to rely on
19 this inconsistency, which undermined He’s claim that he is a
20 practicing Christian. Xiu Xia Lin, 534 F.3d at 163-64.
21 The IJ also cited He’s demeanor: he provided unresponsive
22 or vague answers throughout cross examination. We generally
23 afford particular deference to an IJ’s assessment of an
3
1 applicant’s demeanor. Jin Chen v. U.S. Dep’t of Justice, 426
2 F.3d 104, 113 (2d Cir. 2005).
3 Accordingly, considering the totality of the
4 circumstances, the agency’s credibility determination is
5 supported by substantial evidence. See 8 U.S.C.
6 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64; Siewe,
7 480 F.3d at 170. The adverse credibility determination is
8 dispositive of He’s claims for asylum, withholding of removal
9 and CAT, as all three claims were based on the same factual
10 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
11 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of removal
14 that the Court previously granted in this petition is VACATED,
15 and any pending motion for a stay of removal in this petition
16 is DISMISSED as moot. Any pending request for oral argument
17 in this petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O=Hagan Wolfe, Clerk
4