12-769
Xie v. Holder
BIA
Van Wyke, IJ
A099 163 866
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 9th day of April, two thousand thirteen.
5
6 PRESENT:
7 PETER W. HALL,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _______________________________________
12
13 EN XIE,
14 Petitioner,
15
16 v. 12-769
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Herman S. Dhade, West Bloomfield,
24 Michigan.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Jennifer L.
28 Lightbody, Senior Litigation
29 Counsel; Laura M.L. Maroldy, Trial
1 Attorney, Office of Immigration
2 Litigation, United States Department
3 of Justice, 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 DISMISSED in part and DENIED in part.
9 En Xie, a native and citizen of China, seeks review of
10 a February 9, 2012, decision of the BIA affirming the May
11 24, 2010, decision of Immigration Judge (“IJ”) William Van
12 Wyke, which pretermitted his asylum application as untimely,
13 and in the alternative, denied his applications for asylum,
14 withholding of removal, and for relief under the Convention
15 Against Torture (“CAT”) for a lack of credibility. In re En
16 Xie, No. A099 163 866 (B.I.A. Feb. 9, 2012), aff’g No. A099
17 163 866 (Immig. Ct. N.Y. City May 24, 2010). We assume the
18 parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 I. Asylum
21 Xie challenges the agency’s denial of his asylum
22 application as untimely, asserting that he credibly
23 testified that he filed one day before the filing deadline.
24 Although we lack jurisdiction to review timeliness
2
1 determinations, see 8 U.S.C. § 1158(a)(3), (a)(2)(B), we
2 retain jurisdiction to review constitutional claims and
3 “questions of law,” 8 U.S.C. § 1252(a)(2)(D). Xie does not
4 raise such a claim or question, however, but merely
5 disagrees with the agency’s fact-finding. Thus, we lack
6 jurisdiction to review this claim. See Barco-Sandoval v.
7 Gonzales, 516 F.3d 35, 39 (2d Cir. 2008).
8 II. Withholding of Removal
9 Under the circumstances of this case, we have reviewed
10 the IJ’s decision as modified by the BIA. Yun-Zui Guan v.
11 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). For
12 applications such as Xie’s, governed by the amendments made
13 to the Immigration and Nationality Act by the REAL ID Act of
14 2005, the agency may, considering the totality of the
15 circumstances, base a credibility finding on the applicant’s
16 “demeanor, candor, or responsiveness,” the plausibility of
17 his account, and inconsistencies in his statements, without
18 regard to whether they go “to the heart of the applicant’s
19 claim.” See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);
20 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
21 We will “defer to an IJ’s credibility determination unless,
22 from the totality of the circumstances, it is plain that no
3
1 reasonable fact-finder could make” such a ruling. Xiu Xia
2 Lin, 534 F.3d at 167. In this case, the IJ’s adverse
3 credibility determination is supported by substantial
4 evidence.
5 The IJ reasonably based his credibility finding on
6 discrepancies between Xie’s testimony and his documents, his
7 non-responsiveness, and his lack of reliable documentary
8 evidence. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),
9 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167; Biao Yang v.
10 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
11 First, the IJ’s adverse credibility determination was
12 reasonably based on unexplained discrepancies between Xie’s
13 testimony and his documents, including: (1) Xie’s testimony
14 that his family moved from their home in 2004 but his
15 household register stated he moved in 1993; and (2) his
16 testimony that he had lived in Massachusetts and Michigan,
17 while his asylum application listed only one address, which
18 was in New York. The IJ reasonably relied on these and
19 other inconsistencies in making his adverse credibility
20 determination. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),
21 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167 (providing that
22 an IJ may support an adverse credibility determination with
23 “any inconsistency or omission”). When questioned, Xie was
4
1 unable to offer any satisfactory explanation for the
2 inconsistencies.
3 Second, the adverse credibility determination is
4 further supported by Xie’s non-responsiveness. When the IJ
5 questioned Xie about why his twin brother, who had been
6 granted asylum based on the same claims and who lives in the
7 United States, did not testify on Xie’s behalf, the IJ noted
8 that Xie provided halting, vague, and stammering responses.
9 Furthermore, questions about Xie’s work history and previous
10 residences elicited “hesitant, confused, [and] somewhat
11 equivocal” responses that the IJ found unconvincing.
12 Because the IJ’s credibility finding was tied to these
13 instances of non-responsiveness and Xie’s demeanor, we defer
14 to that finding. See Li Hua Lin v. U.S. Dep’t of Justice,
15 453 F.3d 99, 109 (2d Cir. 2006).
16 Given the discrepancies between Xie’s application and
17 testimony and his lack of responsiveness, the IJ did not err
18 in requiring additional corroboration. See Chuilu Lui v.
19 Holder, 575 F.3d 193, 198-99 (2d Cir. 2009). However, Xie’s
20 documents were all photocopies, some of which were not fully
21 translated, and others not signed by the appropriate
22 official. Furthermore, Xie did not offer his brother’s
23 testimony, in any format, as evidence, though he lives in
5
1 the United States and allegedly obtained asylum based on the
2 same hardships that Xie suffered. 8 C.F.R.
3 § 1158(b)(1)(B)(i); see Chuilu Liu, 575 F.3d at 198; Biao
4 Yang, 496 F.3d at 273.
5 III. CAT
6 Finally, while we do not agree with the government’s
7 contention that Xie has waived his CAT claim by failing to
8 meaningfully argue it, the claim fails because it is based
9 on the same non-credible testimony and documents as Xie’s
10 withholding claim. See Xue Hong Yang v. U.S. Dep’t of
11 Justice, 426 F.3d 520, 522-23 (2d Cir. 2005).
12 For the foregoing reasons, the petition for review is
13 DISMISSED in part and DENIED in part. As we have completed
14 our review, any stay of removal that the Court previously
15 granted in this petition is VACATED, and any pending motion
16 for a stay of removal in this petition is DENIED as moot.
17 Any pending request for oral argument is DENIED in
18 accordance with Federal Rule of Appellate Procedure
19 34(a)(2), and Second Circuit Local Rule 34(d)(1).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
6