15-4137 Xu v. Sessions BIA Vomacka, IJ A205 033 972
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of February, two thousand eighteen.
PRESENT: ROSEMARY S. POOLER, REENA RAGGI, PETER W. HALL, Circuit Judges. _____________________________________
YINGAI XU, Petitioner,
v. 15-4137 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Yingai Xu, Monterey Park, C.A.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Julie M. Iversen, Senior Litigation Counsel; Sergio Sarkany, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DISMISSED IN PART and DENIED IN PART.
Petitioner Yingai Xu, a native and citizen of China, seeks
review of a December 11, 2015, decision of the BIA affirming
a June 19, 2014, decision of an Immigration Judge (“IJ”) denying
Xu’s application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Yingai Xu,
No. A205 033 972 (B.I.A. Dec. 11, 2015), aff’g No. A205 033 972
(Immig. Ct. N.Y. City June 19, 2014). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We have reviewed the IJ’s decision as supplemented and
modified by the BIA (i.e., including the BIA’s additional
corroboration analysis, but excluding the IJ’s inconsistency
finding regarding Xu’s pants). See Xue Hong Yang v. U.S. Dep’t
of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
(2d Cir. 2008). We have liberally construed Xu’s pro se brief
2 as raising the strongest arguments it suggests. Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006).
I. Asylum
An asylum application must be filed within one year of an
applicant’s arrival in the United States, absent changed or
extraordinary circumstances. 8 U.S.C. § 1158(a)(2)(B), (D). We
generally lack jurisdiction to review the denial of asylum as
untimely; however, we have jurisdiction to review
“constitutional claims or questions of law raised upon a
petition for review.” 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).
Xu’s argument that the agency should have credited her account
of her arrival in the United States and her explanation for the
lack of any travel documents does not raise a constitutional
claim or question of law. Credibility findings are factual and
not subject to review in this context. Cf. Xiu Xia Lin, 534 F.3d
at 165. We therefore dismiss Xu’s petition as to her asylum claim
for lack of jurisdiction.
II. Withholding of Removal and CAT Relief
The governing REAL ID Act credibility standard provides
that the agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on an applicant’s
“demeanor, candor, or responsiveness,” the “plausibility of
3 [her] account,” and inconsistencies in her statements and other
record evidence “without regard to whether” those
inconsistencies “go[] to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
“We defer . . . to an IJ’s credibility determination unless,
from the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin, 534 F.3d at 167. Further, “[a] petitioner
must do more than offer a plausible explanation for h[er]
inconsistent statements to secure relief; [s]he must
demonstrate that a reasonable fact-finder would be compelled
to credit h[er] testimony.” Majidi v. Gonzales, 430 F.3d 77,
80 (2d Cir. 2005) (internal quotation marks omitted). For the
reasons that follow, we conclude that substantial evidence
supported the agency’s determination that Xu was not credible.
First, the agency reasonably based the credibility
determination on the inconsistency between Xu’s testimony and
her asylum application regarding how she discovered her
pregnancy. See Xiu Xia Lin, 534 F.3d at 163-64, 167. Xu stated
in her application that she became sick and vomited after
breakfast one day, and then went to a nearby clinic where a
doctor confirmed her pregnancy. Xu testified, however, that she
4 did not go to see a doctor. Instead, she testified that she
suspected she was pregnant when she missed her period and then
confirmed her pregnancy with a home pregnancy test from the
pharmacy. When confronted with the discrepancy, Xu explained
that she also saw a doctor at the pharmacy. But the IJ was not
compelled to accept this explanation because it did not resolve
Xu’s inconsistent testimony, and it was inconsistent with Xu’s
prior testimony that there was only a pharmacist at the pharmacy
who might have suspected she was pregnant because she bought
the home pregnancy test. See Majidi, 430 F.3d at 80.
Second, the agency reasonably relied on the implausibility
of Xu’s testimony about the Korean alias on her asylum
application (Kim, Hae Lee). See Xiu Xia Lin, 534 F.3d at 163-64,
167. Xu was asked whether she ever used the last name “Kim,”
and she responded that she did not think so. When asked again,
Xu stated that she could not recall. Finally, when asked if Kim
was the name on the Korean passport she had used to enter the
United States, Xu responded: “Yes, I think it’s possible.”
Certified Administrative Record (“CAR”) at 177-78. The agency
reasonably found this testimony implausible because Xu had
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15-4137 Xu v. Sessions BIA Vomacka, IJ A205 033 972
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of February, two thousand eighteen.
PRESENT: ROSEMARY S. POOLER, REENA RAGGI, PETER W. HALL, Circuit Judges. _____________________________________
YINGAI XU, Petitioner,
v. 15-4137 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Yingai Xu, Monterey Park, C.A.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Julie M. Iversen, Senior Litigation Counsel; Sergio Sarkany, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DISMISSED IN PART and DENIED IN PART.
Petitioner Yingai Xu, a native and citizen of China, seeks
review of a December 11, 2015, decision of the BIA affirming
a June 19, 2014, decision of an Immigration Judge (“IJ”) denying
Xu’s application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Yingai Xu,
No. A205 033 972 (B.I.A. Dec. 11, 2015), aff’g No. A205 033 972
(Immig. Ct. N.Y. City June 19, 2014). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We have reviewed the IJ’s decision as supplemented and
modified by the BIA (i.e., including the BIA’s additional
corroboration analysis, but excluding the IJ’s inconsistency
finding regarding Xu’s pants). See Xue Hong Yang v. U.S. Dep’t
of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
(2d Cir. 2008). We have liberally construed Xu’s pro se brief
2 as raising the strongest arguments it suggests. Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006).
I. Asylum
An asylum application must be filed within one year of an
applicant’s arrival in the United States, absent changed or
extraordinary circumstances. 8 U.S.C. § 1158(a)(2)(B), (D). We
generally lack jurisdiction to review the denial of asylum as
untimely; however, we have jurisdiction to review
“constitutional claims or questions of law raised upon a
petition for review.” 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).
Xu’s argument that the agency should have credited her account
of her arrival in the United States and her explanation for the
lack of any travel documents does not raise a constitutional
claim or question of law. Credibility findings are factual and
not subject to review in this context. Cf. Xiu Xia Lin, 534 F.3d
at 165. We therefore dismiss Xu’s petition as to her asylum claim
for lack of jurisdiction.
II. Withholding of Removal and CAT Relief
The governing REAL ID Act credibility standard provides
that the agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on an applicant’s
“demeanor, candor, or responsiveness,” the “plausibility of
3 [her] account,” and inconsistencies in her statements and other
record evidence “without regard to whether” those
inconsistencies “go[] to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
“We defer . . . to an IJ’s credibility determination unless,
from the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin, 534 F.3d at 167. Further, “[a] petitioner
must do more than offer a plausible explanation for h[er]
inconsistent statements to secure relief; [s]he must
demonstrate that a reasonable fact-finder would be compelled
to credit h[er] testimony.” Majidi v. Gonzales, 430 F.3d 77,
80 (2d Cir. 2005) (internal quotation marks omitted). For the
reasons that follow, we conclude that substantial evidence
supported the agency’s determination that Xu was not credible.
First, the agency reasonably based the credibility
determination on the inconsistency between Xu’s testimony and
her asylum application regarding how she discovered her
pregnancy. See Xiu Xia Lin, 534 F.3d at 163-64, 167. Xu stated
in her application that she became sick and vomited after
breakfast one day, and then went to a nearby clinic where a
doctor confirmed her pregnancy. Xu testified, however, that she
4 did not go to see a doctor. Instead, she testified that she
suspected she was pregnant when she missed her period and then
confirmed her pregnancy with a home pregnancy test from the
pharmacy. When confronted with the discrepancy, Xu explained
that she also saw a doctor at the pharmacy. But the IJ was not
compelled to accept this explanation because it did not resolve
Xu’s inconsistent testimony, and it was inconsistent with Xu’s
prior testimony that there was only a pharmacist at the pharmacy
who might have suspected she was pregnant because she bought
the home pregnancy test. See Majidi, 430 F.3d at 80.
Second, the agency reasonably relied on the implausibility
of Xu’s testimony about the Korean alias on her asylum
application (Kim, Hae Lee). See Xiu Xia Lin, 534 F.3d at 163-64,
167. Xu was asked whether she ever used the last name “Kim,”
and she responded that she did not think so. When asked again,
Xu stated that she could not recall. Finally, when asked if Kim
was the name on the Korean passport she had used to enter the
United States, Xu responded: “Yes, I think it’s possible.”
Certified Administrative Record (“CAR”) at 177-78. The agency
reasonably found this testimony implausible because Xu had
worked as a Korean language tutor and should have been able to
remember the identity she assumed while traveling through
5 various countries in Europe and attempting to enter the United
States. See Xiu Xia Lin, 534 F.3d at 167.
Third, the agency reasonably based the credibility
determination on the IJ’s observations of Xu’s demeanor. See
id. at 163-64, 167. “[D]emeanor is paradigmatically the sort
of evidence that a fact-finder is best positioned to evaluate,”
Li Zu Guan v. INS, 453 F.3d 129, 140 (2d Cir. 2006), and we
therefore “give particular deference to credibility
determinations that are based on the adjudicator’s observation
of the applicant’s demeanor,” Jin Chen v. U.S. Dep’t of Justice,
426 F.3d 104, 113 (2d Cir. 2005). Here, the IJ found that Xu
gave many hesitant or self-contradictory answers, seemed to be
reluctant to make definite statements, had trouble remembering
basic facts and details about her case, and often had to be
prompted. As one example, the IJ noted that he had to question
Xu repeatedly before she identified the documents that she
claimed were in her former attorney’s possession. This finding
is supported by the record, and we therefore give it deference.
See Xiu Xia Lin, 534 F.3d at 167; Jin Chen, 426 F.3d at 113.
Finally, the IJ agency reasonably relied on Xu’s lack of
corroborating evidence in assessing her credibility. See Biao
Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
6 applicant’s failure to corroborate his or her testimony may bear
on credibility, because the absence of corroboration in general
makes an applicant unable to rehabilitate testimony that has
already been called into question.”). The IJ correctly observed
that Xu did not submit any corroborating evidence beyond
identification documents, and Xu does not claim that the agency
erred in finding this evidence insufficient to rehabilitate her
credibility. Instead, she contends that the IJ erred by failing
to provide notice of her need to submit specific pieces of
corroborating evidence. However, Xu’s argument conflates
corroboration in the adverse credibility context with the
denial of a credible claim for failure to submit reasonably
available corroborating evidence. See Petitioner’s Br. at 14
(citing 8 U.S.C. §§ 1158(b)(1)(B)(ii)); compare Biao Yang, 496
F.3d at 273 (explaining “the absence of corroboration in general
already been called into question”) with 8 U.S.C.
§§ 1158(b)(1)(B)(ii)(explaining corroboration may not be
necessary “if the applicant satisfies the trier of fact that
the applicant’s testimony is credible,” among other
requirements), 1252(b)(4). Although Xu testified that she had
a fine notice and a fine receipt (but did not submit them because
7 her former attorney in Los Angeles had them) and a letter from
her parents corroborating her forced abortion (but did not
submit it because she did not think it was evidence), the agency
did not deny relief because Xu did not submit this evidence;
it merely considered the absence of this evidence in assessing
Xu’s credibility. In any event, the IJ was not obligated to list
each document required to establish a successful claim because
“[a]n alien applying for relief or protection from removal has
the burden of proof.” 8 U.S.C § 1229a(c)(4)(A); cf. Chuilu Liu
v. Holder, 575 F.3d 193, 198 (2d Cir. 2009) (“While [the Court]
ha[s] sometimes remanded a case if the IJ failed to explain his
reliance on a lack of corroborating evidence, the alien bears
the ultimate burden of introducing such evidence without
prompting from the IJ.”).
Given the agency’s foregoing demeanor and inconsistency
findings, and its reasonable consideration of Xu’s
corroborating evidence, the totality of the circumstances
supports the adverse credibility determination. See Xiu Xia
Lin, 534 F.3d at 167. A reasonable adjudicator would not be
compelled to conclude otherwise. Id. The credibility finding
is dispositive of withholding of removal and CAT relief because
both claims are based on the same factual predicate. See Paul
8 v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). We therefore
deny the petition as to withholding of removal and CAT relief.
For the foregoing reasons, the petition for review is
DISMISSED IN PART and DENIED IN PART. As we have completed our
review, any stay of removal that the Court previously granted
in this petition is VACATED. Any pending request for oral
argument in this petition is DENIED in accordance with Federal
Rule of Appellate Procedure 34(a)(2), and Second Circuit Local
Rule 34.1(b).
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk