De Ye Qiu v. Lynch

15-3024
Qiu v. Lynch
BIA
Balasquide, IJ
A200 919 454
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 30th day of November, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 SUSAN L. CARNEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 DE YE QIU,
14 Petitioner,
15
16 v. 15-3024
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: De Ye Qiu, pro se, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Cindy S.
27 Ferrier, Assistant Director;
28 Kimberly A. Burdge, Trial Attorney,
29 Office of Immigration Litigation,
30 United States 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 is
4 DENIED.
5 Petitioner De Ye Qiu, a native and citizen of the People’s
6 Republic of China, seeks review of a September 1, 2015, decision
7 of the BIA, affirming a January 6, 2014, decision of an
8 Immigration Judge (“IJ”) denying Qiu’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re De Ye Qiu, No. A200 919 454 (B.I.A. Sept.
11 1, 2015), aff’g No. A200 919 454 (Immig. Ct. N.Y. City Jan. 6,
12 2014). We assume the parties’ familiarity with the underlying
13 facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432
16 F.3d 391, 394 (2d Cir. 2005). Qiu does not challenge the
17 pretermission of his asylum application as untimely. See
18 Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005).
19 We thus consider only the agency’s denial of withholding of
20 removal and CAT relief. The applicable standards of review are
21 well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
22 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
2
1 For asylum applications like Qiu’s, governed by the REAL
2 ID Act, the agency may, “[c]onsidering the totality of the
3 circumstances,” base a credibility finding on inconsistencies
4 in an applicant’s statements and documentary evidence, “without
5 regard to whether” those inconsistencies go “to the heart of
6 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
7 Xia Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s
8 credibility determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder could
10 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
11 at 167. As discussed below, the adverse credibility
12 determination rests on substantial evidence.
13 The agency reasonably cited inconsistencies between Qiu’s
14 testimony and application concerning his date of departure from
15 China and entry to the United States. At the outset of the
16 hearing, Qiu testified that he left China on May 12, 2012, and
17 entered the United States the same day. He subsequently
18 testified that he left China on April 7, 2011, and entered the
19 United States on May 12, 2011. His attorney asked him why his
20 application reflected that he left China on April 7, 2010, and
21 entered the United States on May 12, 2010; Qiu responded that
22 his application was wrong: he left China on April 7, 2011, and
3
1 entered the United States on May 12, 2011. His attorney showed
2 him his asylum application, which was signed on September 13,
3 2010. After confirming that the application bore his
4 signature, he was asked how it was possible to have applied for
5 asylum in September 2010 if he left China in April 2011; Qiu
6 then testified that he left China on April 7, 2010. Qiu did
7 not attempt to explain his shifting testimony. See Majidi v.
8 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
9 do more than offer a plausible explanation for his inconsistent
10 statements to secure relief; he must demonstrate that a
11 reasonable fact-finder would be compelled to credit his
12 testimony.” (internal quotation marks and citations omitted));
13 see also 8 C.F.R § 1208.3(c)(2) (“The applicant’s signature
14 establishes a presumption that the applicant is aware of the
15 contents of the application.”).
16 Qiu’s hotel receipt from Beijing compounded the confusion
17 concerning Qiu’s date of departure. See Xiu Xia Lin, 534 F.3d
18 at 167. Qiu testified that he stayed at a hotel in Beijing from
19 April 5 to 7, 2010, before leaving China. The hotel receipt
20 reflected those dates. Qiu then testified that, after checking
21 out of the hotel on April 7, 2010, he remained in China an
22 additional three nights: one night at the airport, and two
4
1 nights at a civilian house. Qiu then testified that he stayed
2 at the civilian house until April 5, 2010, after which he
3 returned home; he testified again that he stayed at the hotel
4 from April 5 to 7, 2010, and left China directly from the hotel.
5 The IJ reasonably rejected Qiu’s explanation—that he didn’t
6 remember—because it did not account for the inconsistencies in
7 his story. See Majidi, 430 F.3d at 80.
8 The adverse credibility determination is further supported
9 by inconsistencies between Qiu’s testimony and evidence
10 concerning his employment history in China. Xiu Xia Lin, 534
11 F.3d at 167. Qiu submitted a health certificate dated November
12 20, 2009, and testified that his restaurant employer requested
13 it. However, Qiu had previously testified that he was fired
14 from the restaurant on October 21, 2009, after being released
15 from custody. When confronted with this inconsistency, Qiu
16 testified that he had been seeking employment elsewhere. The
17 agency was not required to accept that explanation. See
18 Majidi, 430 F.3d at 80.
19 In his pro se brief, Qiu does not challenge the
20 inconsistencies, but argues that they were minor and did not
21 go to the heart of his claim. Qiu’s argument is misplaced
22 because it relies on pre-REAL ID Act precedent. Under the REAL
5
1 ID Act, which governs Qiu’s case, “an IJ may rely on any
2 inconsistency or omission in making an adverse credibility
3 determination,” where, as here, “the ‘totality of the
4 circumstances’ establishes that an asylum applicant is not
5 credible.” Xiu Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C.
6 § 1158(b)(1)(B)(iii)) (emphasis in original).
7 Given the multiple inconsistencies identified, it cannot
8 be said “that no reasonable fact-finder could make such a
9 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. That
10 finding is dispositive of withholding of removal and CAT relief
11 because both forms of relief are based on the same factual
12 predicate. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
13 2006).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of removal
16 that the Court previously granted in this petition is VACATED,
17 and any pending motion for a stay of removal in this petition
18 is DISMISSED as moot. Any pending request for oral argument
19 in this petition is DENIED in accordance with Federal Rule of
20 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
21 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
6