Xian Xin Ye v. Lynch , 618 F. App'x 703 ( 2015 )

13-2703
Ye v. Lynch
BIA
Cheng, IJ
A087 532 046
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 15th day of July, two thousand fourteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 REENA RAGGI,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 XIAN XIN YE,
14 Petitioner,
15
16 v. 13-2703
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.1
21 _____________________________________
22
23 FOR PETITIONER: Michael Brown, New York, NY.
24
25
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is
automatically substituted for former Attorney General
Eric H. Holder, Jr.
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Russell J. E. Verby, Senior
3 Litigation Counsel; John D.
4 Williams, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8 UPON DUE CONSIDERATION of this petition for review of a
9 decision of the Board of Immigration Appeals (“BIA”), it is
10 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
11 review is DENIED.
12 Xian Xin Ye, a native and citizen of China, seeks
13 review of a June 28, 2013, decision of the BIA affirming an
14 Immigration Judge’s (“IJ”) December 6, 2011, denial of
15 asylum, withholding of removal, and relief under the
16 Convention Against Torture (“CAT”). In re Xian Xin Ye, No.
17 A087 532 046 (B.I.A. Jun. 28, 2013), aff’g No. A087 532 046
18 (Immig. Ct. N.Y. City Dec. 6, 2011). We assume the parties’
19 familiarity with the underlying facts and procedural history
20 of this case.
21 Under the circumstances of this case, we have reviewed
22 the IJ’s decision as supplemented by the BIA. See Islam v.
23 Gonzales, 469 F.3d 53, 55 (2d Cir. 2006). The applicable
24 standards of review are well established. See 8 U.S.C.
25 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-
26 66 (2d Cir. 2008) (per curiam).
2
1 For applications, like Ye’s, governed by the REAL ID
2 Act, the agency may, “[c]onsidering the totality of the
3 circumstances,” base a credibility finding on demeanor and
4 responsiveness during questioning, as well as
5 inconsistencies in an applicant’s statements and other
6 record evidence “without regard to whether” they go “to the
7 heart of the applicant’s claim.” 8 U.S.C.
8 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163 n.2.
9 Here, substantial evidence supports the agency’s decision.
10 First, we defer to the IJ’s findings regarding
11 demeanor. The IJ concluded that Ye’s demeanor suggested he
12 was not testifying in a candid or forthright manner, because
13 he provided nonresponsive and evasive answers to
14 questioning. This finding is supported by the record and is
15 “paradigmatically the sort of evidence that a fact-finder is
16 best positioned to evaluate.” Li Zu Guan v. INS, 453 F.3d
17 129, 140 (2d Cir. 2006).
18 The adverse credibility determination is further
19 supported by inconsistencies in the record. First, Ye
20 testified that his religion was Falun Gong but, in his
21 application, he listed his religion as Buddhist. Ye also
22 wrote that he was involved in a Christian church. When
3
1 confronted with these discrepancies, Ye first responded that
2 he was Buddhist, but then stated that he had thought he was
3 being asked to identify his family’s religion. A reasonable
4 factfinder would not be compelled to credit these
5 explanations, as Ye reviewed his application before
6 submitting it and the question on his application was among
7 other questions regarding Ye’s personal information–-not
8 information about his family. See Majidi v. Gonzales, 430
9 F.3d 77, 80-81 (2d Cir. 2005).
10 Similarly, when confronted with the statements in his
11 application regarding his practice of Christianity, Ye said
12 that he did not know why his application included such
13 information, and testified that he had never participated in
14 any church. The agency was not compelled to credit this
15 explanation, as it did not explain why Christianity was
16 mentioned in his application. Id. at 80-81. Although Ye
17 argues that he remedied this inconsistency by submitting a
18 corrected application to the BIA, the BIA’s review of IJ
19 decisions is limited to the record before the IJ. 8 C.F.R.
20 § 1003.1(d)(3)(iv). In addition, when Ye submitted his
21 application, the IJ specifically asked whether any changes
22 were needed and Ye replied that they were not. Thus, the
4
1 agency properly relied on the inconsistency regarding Ye’s
2 faith.
3 The agency also reasonably relied on inconsistencies
4 involving the mistreatment Ye suffered when reporting to the
5 village cadres after his arrest. Ye testified that he
6 reported to the cadres eight or nine times, and was “hit
7 once but every time they insult me and yell at me.” When
8 confronted with a letter from his father, which stated that
9 Ye suffered “endless torture” and beatings each time he
10 reported, Ye changed his testimony to say he was hit lightly
11 every time, but seriously once. A reasonable factfinder
12 would not be compelled to credit Ye’s explanation that one
13 beating was more serious because Ye was not asked when he
14 was treated the most severely, rather, he was asked how
15 often he was “hit” by the authorities.
16 Considering the inconsistencies in the record regarding
17 Ye’s religion and his treatment by Chinese authorities, Ye’s
18 claim that he practiced Falun Gong and was persecuted on
19 account of that practice is called into question.
20 Consequently, the “totality of the circumstances” supports
21 the agency’s adverse credibility determination. See Xiu Xia
22 Lin, 534 F.3d at 167. Because all of Ye’s claims share the
23 same factual predicate, the adverse credibility
5
1 determination is dispositive of asylum, withholding of
2 removal, and CAT relief. Paul v. Gonzales, 444 F.3d 148,
3 155-57 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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