09-1779-ag
Xing v. Holder
BIA
Mulligan, IJ
A099 682 931
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 21 st day of January, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11
12 _______________________________________
13
14 KAI XING,
15 Petitioner,
16
17 v. 09-1779-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23 FOR PETITIONER: Henry Zhang, Zhang & Associates, New
24 York, New York.
25
26 FOR RESPONDENT: Tony West, Acting Assistant Attorney
27 General, Civil Division; Francis W.
28 Fraser, Senior Litigation Counsel;
29 W. Daniel Shieh, Trial Attorney,
30 United States Department of Justice,
31 Civil Division, 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, in part, and DISMISSED, in part.
5 Petitioner Kai Xing, a native and citizen of the
6 People’s Republic of China, seeks review of an April 10,
7 2009 order of the BIA affirming the January 23, 2007
8 decision of Immigration Judge (“IJ”) Thomas J. Mulligan
9 pretermitting his application for asylum, and denying his
10 application for withholding of removal and relief under the
11 Convention Against Torture (“CAT”). In re Kai Xing, No.
12 A099 682 931 (B.I.A. Apr. 10, 2009), aff’g No. A099 682 931
13 (Immig. Ct. N.Y. City Jan. 23, 2007). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 Under the circumstances of this case, this Court
17 reviews the decision of the IJ as supplemented by the BIA.
18 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005);
19 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).
20 The applicable standards of review are well-established.
21 Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008);
22 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
2
1 For asylum applications governed by the REAL ID Act of 2005,
2 the agency may, in considering the totality of the
3 circumstances, base a credibility finding on an asylum
4 applicant’s demeanor, the plausibility of his or her
5 account, and inconsistencies in his or her statements,
6 without regard to whether they go “to the heart of the
7 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). This
8 Court “defer[s] to an IJ’s credibility determination unless,
9 from the totality of the circumstances, it is plain that no
10 reasonable fact-finder could make such an adverse
11 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
12 167 (2d Cir. 2008).
13 I. Asylum
14 Title 8, Section 1158(a)(3) of the United States Code
15 provides that no court shall have jurisdiction to review the
16 agency’s finding that an asylum application was untimely
17 under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither
18 changed nor extraordinary circumstances excusing the
19 untimeliness under 8 U.S.C. § 1158(a)(2)(D).
20 Notwithstanding that provision, however, this Court retains
21 jurisdiction to review constitutional claims and questions
22 of law. See 8 U.S.C. § 1252(a)(2)(D). Because Xing
3
1 challenges only purely factual determinations and the
2 agency’s exercise of discretion, we dismiss the petition for
3 review to the extent he attempts to challenge the agency’s
4 pretermission of his asylum application. See 8 U.S.C.
5 § 1158(a)(3).
6 II. Withholding of Removal
7 Substantial evidence supports the IJ’s adverse
8 credibility determination. In finding Xing not credible,
9 the IJ found that: (1) his demeanor changed when he was
10 asked about “a critical date in the case” and that “the
11 nervousness he exhibited in response to this line of
12 questioning causes the court to question whether there was
13 ever even an arrest”; (2) his repeated testimony that he and
14 his mother were released on separate days was contradicted
15 by his asylum application and his mother’s statement; and
16 (3) his witness’s testimony that he knew Xing in China for
17 four years, yet was “not sure if the respondent ever had any
18 problems of any kind in China” was implausible.
19 These findings serve as substantial evidence for the
20 IJ’s adverse credibility determination. Xiu Xia Lin, 534
21 F.3d at 167; Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.
22 2006). While Xing argues that he adequately explained the
4
1 major inconsistency between his testimony and the
2 documentary evidence, no reasonable factfinder would have
3 been compelled to credit his explanation. See Majidi v.
4 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005); see also Siewe
5 v. Gonzales, 480 F.3d 160, 167 -168 (2d Cir. 2007). Because
6 the adverse credibility finding is amply supported by the
7 record, the Court need not reach Xing’s remaining arguments
8 regarding his burden of proof. Additionally, Xing fails to
9 sufficiently challenge the agency’s denial of CAT releif in
10 his brief to this Court. See Yueqing Zhang v. Gonzales, 426
11 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
12 For the foregoing reasons, the petition for review is
13 DENIED, in part, and DISMISSED, in part. As we have
14 completed our review, any pending motion for a stay of
15 removal in this petition is DISMISSED as moot. Any pending
16 request for oral argument in this petition is DENIED in
17 accordance with Federal Rule of Appellate Procedure
18 34(a)(2), and Second Circuit Local Rule 34(b).
19
20
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
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26 By:_________________________
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