Xiao Xia Luo v. Holder

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 11 12 6