11-1701-ag BIA
Luo v. Holder Nelson, IJ
A094 925 193
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 5th day of November, two thousand twelve.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 XIAO XIA LUO,
14 Petitioner,
15
16 v. 11-1701-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Eric Zheng, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Douglas E. Ginsburg,
27 Assistant Director, Judith R.
28 O’Sullivan; Trial Attorney, Office
1 of Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED, that the petition for review
8 is DENIED.
9 Xiao Xia Luo, a native and citizen of the People’s
10 Republic of China, seeks review of a decision of the BIA
11 affirming the Immigration Judge’s (“IJ”) denial of her
12 application for asylum, withholding of removal, and relief
13 under the Convention Against Torture (“CAT”). In re Xiao
14 Xia Luo, No. A094 925 193 (B.I.A. Apr. 13, 2011), aff’g No.
15 A094 925 193 (Immig. Ct. N.Y. City, Mar. 18, 2009). We
16 assume the parties’ familiarity with the underlying facts
17 and procedural history in this case.
18 Under the circumstances of this case, we have reviewed
19 both the IJ’s and the BIA’s opinions “for the sake of
20 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
21 2008). The applicable standards of review are well-
22 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia
23 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). For
24 asylum applications, like Luo’s, governed by the REAL ID
25 Act, the agency may base a credibility determination on the
2
1 applicant’s “demeanor, candor, or responsiveness,” the
2 plausibility of his or her account, and inconsistencies in
3 his or her statements, without regard to whether they go “to
4 the heart of the applicant’s claim.” See 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. This
6 Court “defer[s] . . . to an IJ’s credibility determination
7 unless, from the totality of the circumstances, it is plain
8 that no reasonable fact-finder could make such an adverse
9 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
10 Substantial evidence supports the agency’s adverse
11 credibility determination, as it was properly based on
12 inconsistencies between Luo’s airport interview and her
13 asylum application and hearing testimony, and Luo’s
14 “hesitant and nonresponsive” testimony. Luo argues that her
15 airport interview was unreliable. Where discrepancies arise
16 from an applicant’s statements in an airport interview, we
17 examine the record of the interview to ensure that “it
18 represents a sufficiently accurate record of the alien’s
19 statements to merit consideration in determining whether the
20 alien is credible.” Ramsameachire v. Ashcroft, 357 F.3d
21 169, 179 (2d Cir. 2004).
22
3
1 Here, the agency reasonably found the record of Luo’s
2 airport interview sufficiently reliable because: (1) it
3 appears to be a verbatim transcript; (2) the questions posed
4 to Luo at the interview were open-ended and designed to
5 determine whether she had suffered harm or feared returning
6 to China; (3) there were no indications at Luo’s airport
7 interview that she feared the interviewing officers, and Luo
8 did not object to the introduction of the record of her
9 interview into evidence before the IJ; and (4) Luo was
10 provided an interpreter in Mandarin, her preferred language,
11 and did not object in any way to the translation provided to
12 her. See id. at 180.
13 Having concluded that the airport interview was a
14 reliable record of Luo’s statement, the agency reasonably
15 based its adverse credibility finding on Luo’s failure to
16 mention in her airport interview her later allegation that
17 she was arrested, detained, and beaten by Chinese police who
18 sought information about her parents’ whereabouts in
19 connection with their Falun Gong practice. See Xiu Xia Lin,
20 534 F.3d at 166 & n.3. The agency was not required to
21 credit Luo’s explanation for this omission, that she was
22 afraid of her interviewer and nervous, because there were no
4
1 indications in the record that she feared her interviewers,
2 she answered all of their questions, and she twice stated
3 during the interview that she came to the United States to
4 work. See Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir.
5 2005).
6 Moreover, it was well within the agency’s discretion to
7 decline to afford Luo’s parents’ and cousin’s supporting
8 affidavits probative value due to evidentiary concerns. See
9 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d
10 Cir. 2005). Finally, the agency reasonably relied on Luo’s
11 “hesitant and nonresponsive” testimony in finding her not
12 credible because Luo repeatedly declined to directly answer
13 the government’s questions concerning her brother, who
14 remains in China. See Dong Gao v. B.I.A., 482 F.3d 122,
15 126-27 (2d Cir. 2007). Ultimately, the agency’s adverse
16 credibility determination was supported by substantial
17 evidence and thus precludes success on Luo’s claim for
18 withholding of removal and CAT relief based on the same
19 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156
20 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426
21 F.3d 520, 523 (2d Cir. 2005). Because the agency’s
22 credibility finding is dispositive, we need not reach its
23 alternative nexus finding.
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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