Yue Xiong v. Holder ( 2014 )

13-2626
Xiong v. Holder
BIA
Christensen, IJ
A200 922 420
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 19th day of December, two thousand fourteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 GUIDO CALABRESI,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 YUE XIONG,
14 Petitioner,
15
16 v. 13-2626
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Francis W. Fraser, Senior
27 Litigation Counsel; Gary J. Newkirk,
28 Trial Attorney, Office of
29 Immigration Litigation,
30 U.S. Department of Justice,
31 Washington D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Yue Xiong, a native and citizen of the People’s
6 Republic of China, seeks review of a June 13, 2013 decision
7 of the BIA, affirming the December 21, 2011 decision of an
8 Immigration Judge (“IJ”) denying her application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Yue Xiong, No. A200 922 420
11 (B.I.A. June 13, 2013), aff’g No. A200 922 420 (Immig. Ct.
12 N.Y. City Dec. 21, 2011). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA. See Xue Hong Yang
17 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
18 The applicable standards of review are well established.
19 See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534
20 F.3d 162, 165-66 (2d Cir. 2008) (per curiam). The agency
21 may, “[c]onsidering the totality of the circumstances,” base
22 a credibility finding on an asylum applicant’s demeanor, and
23 inconsistencies in his statements and other record evidence
24 “without regard to whether” they go “to the heart of the
2
1 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
2 Lin, 534 F.3d at 163-64.
3 Substantial evidence supports the agency’s
4 determination that Xiong was not credible. The IJ found
5 that Xiong was not credible because her testimony was
6 inconsistent with that of her sister as to when her sister
7 last visited China, whether Xiong told her sister before
8 leaving China that she was a Falun Gong practitioner and had
9 been arrested, and whether Xiong’s husband ate dinner with
10 her and her sister on the night before the hearing. The IJ
11 also found Xiong not credible because her testimony about
12 her travel documents was inconsistent and incoherent. The
13 record supports each of these findings.
14 Xiong argues that the IJ should have credited her
15 testimony over her sister’s and contends that her
16 inconsistent testimony regarding her travel documents should
17 not be held against her because it was “immediately
18 corrected.” Pet. Br. at 7-8. The IJ was not, however,
19 required to credit these explanations considering that Xiong
20 provides no reason why she is more credible than her sister,
21 and her correction, which occurred after she was confronted
22 with documentary evidence, does not negate the inconsistency
23 in her testimony. See Majidi v. Gonzales, 430 F.3d 77, 81
24 (2d Cir. 2005) (holding that an agency need not credit an
3
1 applicant’s explanations for inconsistent testimony unless
2 those explanations would compel a reasonable fact-finder to
3 do so).
4 These inconsistencies call into question important
5 aspects of Xiong’s claim, including whether Xiong was in
6 China at the time of the alleged persecution and whether she
7 was, or is, a Falun Gong practitioner. The totality of the
8 circumstances therefore supports the agency’s adverse
9 credibility determination. See 8 U.S.C.
10 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because
11 all of Xiong’s claims turn on her credibility, the adverse
12 credibility determination is dispositive of her claims for
13 asylum, withholding of removal, and CAT relief. Paul v.
14 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, the pending motion
17 for a stay of removal in this petition is DENIED as moot.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
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