Qi Fu Xiao v. Lynch ( 2016 )

15-402
Xiao v. Lynch
BIA
Christensen, IJ
A200 236 662
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 2nd day of September, two thousand sixteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 QI FU XIAO,
14 Petitioner,
15
16 v. 15-402
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, Law Offices of
24 Gerald Karikari, P.C., New York, New
25 York.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General; Holly M.
29 Smith, Senior Litigation Counsel;
1 John F. Stanton, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Qi Fu Xiao, a native and citizen of the People’s
11 Republic of China, seeks review of a January 14, 2015, decision
12 of the BIA affirming an August 12, 2013, decision of an
13 Immigration Judge (“IJ”) denying Xiao’s application for asylum,
14 withholding of removal, and relief under the Convention Against
15 Torture (“CAT”). In re Qi Fu Xiao, No. A200 236 662 (B.I.A.
16 Jan. 14, 2015), aff’g No. A200 236 662 (Immig. Ct. N.Y. City
17 Aug. 12, 2013). We assume the parties’ familiarity with the
18 underlying facts and procedural history in this case.
19 We have reviewed both the IJ’s and the BIA’s opinions.
20 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The
21 applicable standards of review are well established. See
22 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
23 165-66 (2d Cir. 2008). For asylum applications like Xiao’s,
24 governed by the REAL ID Act, the agency may, “[c]onsidering the
2
1 totality of the circumstances,” base a credibility finding on
2 inconsistencies in an applicant’s statements and other record
3 evidence “without regard to whether” they go “to the heart of
4 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
5 Xia Lin, 534 F.3d at 163-64.
6 The IJ reasonably relied on inconsistencies among Xiao’s
7 testimony, asylum application, and credible fear interview.
8 Two of these inconsistencies are directly material to his
9 allegation of past persecution, and alone are sufficient
10 support for the adverse credibility determination. Zhou Yun
11 Zhang v. U.S. INS, 386 F.3d 66, 74 (2d Cir. 2004), overruled
12 on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494
13 F.3d 296 (2d Cir. 2007). Xiao testified that several members
14 of his church were arrested, but stated in his credible fear
15 interview that he knew nothing about what happened to other
16 members. He also submitted a letter from his church—dated
17 after Xiao testified the church had been torn down—that omitted
18 mention of any raid or arrests. Xiu Xia Lin, 534 F.3d at 166
19 n.3 (explaining that an inconsistency and an omission are
20 “functionally equivalent”). The agency was not compelled to
21 accept Xiao’s explanations for these inconsistencies. Majidi
3
1 v. Gonzales, 430 F.3d 77, 81 (2d Cir. 2005). Xiao’s alleged
2 nervousness does not explain why he gave incorrect statements
3 about the circumstances surrounding his past harm, and the
4 record of the credible fear interview reflects that he was not
5 asked what he knew at the time of his arrest, but merely whether
6 others were arrested. His explanation that his parents
7 obtained the letter from his church does not resolve the
8 problems with it; he did not explain why it omitted the raid
9 and arrest or could be obtained after the church was torn down.
10 The adverse credibility determination was strengthened by
11 two additional inconsistencies. First, Xiao stated in his
12 credible fear interview that he was hospitalized for a week,
13 but his application reported only outpatient treatment. The
14 IJ was not required to accept his explanation that he misspoke.
15 Id. Xiao also undermined his credibility by lying about his
16 passport. Although Xiao admitted to the false statement, the
17 IJ permissibly concluded that—even if he credited Xiao’s
18 explanation that the smuggler told him to lie—Xiao nevertheless
19 continued to have a motive to lie: he owed money to the smuggler,
20 and needed to stay in the country to pay him back. Id.; see
21 also Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007).
4
1 Given the alleged inconsistencies, both tangential and
2 going to the heart of the alleged past persecution, the
3 “totality of the circumstances” supports the adverse
4 credibility determination. See Xiu Xia Lin, 534 F.3d at 167.
5 The adverse credibility determination is dispositive of asylum,
6 withholding of removal, and CAT relief because all three forms
7 of relief relied on the same factual predicate. See Paul v.
8 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of removal
11 that the Court previously granted in this petition is VACATED,
12 and any pending motion for a stay of removal in this petition
13 is DISMISSED as moot. Any pending request for oral argument
14 in this petition is DENIED in accordance with Federal Rule of
15 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
16 34.1(b).
17 FOR THE COURT:
18 Catherine O=Hagan Wolfe, Clerk
5