     14-1060
     Xu v. Lynch
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A200 603 621
                        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   18th day of September, two thousand fifteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            DEBRA ANN LIVINGSTON,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   XIAN ZHU XU,
14            Petitioner,
15
16                 v.                                                14-1060
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                    Theodore N. Cox, New York, New York.
25
26   FOR RESPONDENT:                     Joyce R. Branda, Acting Assistant
27                                       Attorney General, Civil Division;
28                                       Stephen J. Flynn, Assistant
29                                       Director; James A. Hurley, Attorney,
 1                                 Office of Immigration Litigation,
 2                                 United States Department of Justice,
 3                                 Washington, D.C.
 4
 5          UPON DUE CONSIDERATION of this petition for review of a

 6   Board of Immigration Appeals (“BIA”) decision, it is hereby

 7   ORDERED, ADJUDGED, AND DECREED that the petition for review is

 8   DENIED.

 9          Petitioner Xian Zhu Xu, a native and citizen of China, seeks

10   review of a March 31, 2014 decision of the BIA affirming a July

11   12, 2012 decision of an Immigration Judge (“IJ”) denying Xu’s

12   application for asylum, withholding of removal, and relief

13   under the Convention Against Torture (“CAT”).       In re Xian Zhu

14   Xu, No. A200 603 621 (B.I.A. Mar. 31, 2014), aff’g No. A200 603

15   621 (Immig. Ct. N.Y.C. July 12, 2012).     We assume the parties’

16   familiarity with the underlying facts and procedural history

17   in this case.

18          We have reviewed the IJ’s decision as supplemented by the

19   BIA.    See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

20   The applicable standards of review are well established.       See

21   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

22   513 (2d Cir. 2009).


                                      2
1        For asylum applications like Xu’s, that are governed by the

2    REAL ID Act, the agency may, “[c]onsidering the totality of the

3    circumstances,” base a credibility finding on inconsistencies

4    in an asylum applicant’s statements and other record evidence

5    “without regard to whether” they go “to the heart of the

6    applicant’s claim.”        8 U.S.C. § 1158(b)(1)(B)(iii); See Xiu

7    Xia Lin v. Mukasey, 534 F.3d 162, 163-64, 167 (2d Cir. 2008)(per

8    curiam).

9        In its adverse credibility finding here, the agency

10   reasonably relied on the inconsistencies between Xu’s credible

11   fear interview and her testimony and application.                   Xu’s

12   credible   fear      interview    bears    sufficient     indicia    of

13   reliability,   and    Xu   does   not   contest   that   the   relevant

14   assertions that she made there were false and conflicted with

15   the asylum claim she presented in her subsequent application

16   and testimony.    See Ming Zhang v. Holder, 585 F.3d 715, 723-25

17   (2d Cir. 2009).

18       Xu argues that the agency erred by relying solely upon the

19   discrepancies between her credible fear interview and her

20   testimony and application.        When the agency “has ‘identified

21   a material inconsistency in an aspect of [the applicant’s] story
                                        3
1    that served as an example of the very persecution from which

2    he sought asylum,’ . . . the inconsistency [can] afford[]

3    substantial   evidence   to   support   the   adverse   credibility

4    finding.”   Xian Tuan Ye v. DHS, 446 F.3d 289, 295 (2d Cir. 2006)

5    (quoting Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)).

6    The inconsistencies relied upon by the agency were material:

7    they concerned whether or not Xu had an abortion, whether she

8    was detained for hours or 20 days, whether she was pregnant once

9    or twice, whether she remained in hiding for 11 years, and

10   whether she was persecuted because she violated the family

11   planning policy or if there was an additional basis, such as

12   her support of Falun Gong.      The agency’s reliance on these

13   discrepancies was proper.

14       Thus, at her credible fear interview, Xu alleged that

15   family planning officials discovered her second pregnancy,

16   arrested and detained her for 20 days, and forced her to

17   terminate the pregnancy because she was not married.           She

18   stated that she went into hiding for almost 11 years following

19   that incident.     In contrast, her asylum application and

20   testimony omit any assertions about the abortion and second

21   pregnancy, the 20-day detention, and her 11 years of hiding.
                                      4
1    Instead, there, Xu alleged that she was detained for a few hours

2    and fined for being pregnant out of wedlock, but was not forced

3    to have an abortion.       She asserted in addition that she was

4    later arrested, detained, and beaten for criticizing the

5    Chinese    Government’s       suppression         of    Falun      Gong.       Xu’s

6    explanation for the divergent accounts—that she was forced to

7    tell the asylum officer the story a snakehead gave her—is not

8    one that the agency was compelled to credit, particularly since

9    the snakehead did not attend the interview, Xu was instructed

10   there on the importance of telling the truth, and her husband

11   had already been granted withholding of removal on a Falun Gong

12   claim.    See Majidi, 430 F.3d at 80 (“A petitioner must do more

13   than    offer   a   plausible    explanation           for   his     inconsistent

14   statements to secure relief; he must demonstrate that a

15   reasonable      fact-finder     would       be   compelled      to    credit    his

16   testimony.” (internal quotations omitted)).

17          Xu also faults the IJ for not considering her Falun Gong

18   claim and her husband’s testimony.               The IJ’s decision contains

19   detailed descriptions of both, however, and the IJ specifically

20   concluded that, after “considering all the evidence,” there was

21   no “reasonable way to reconcile” the two different accounts of
                                             5
1    persecution that Xu advanced.    In re Xian Zhu Xu, No. A200 603

2    621, at 25 (Immig. Ct. N.Y.C. July 12, 2012).   Although the IJ

3    stated that she relied on inconsistencies relating to the family

4    planning ground, the agency is not required to “expressly parse

5    or refute on the record each individual argument or piece of

6    evidence offered by the petitioner.”    Zhi Yun Gao v. Mukasey,

7    508 F.3d 86, 87 (2d Cir. 2007)(per curiam)(internal quotation

8    marks omitted).

9        Xu’s final argument is that the agency inappropriately

10   applied the doctrine falsus in uno, falsus in omnibus because

11   the agency did not consider that her husband’s testimony

12   corroborated her claim and that Xu’s credible fear interview

13   was not reliable.    The agency explicitly considered, however,

14   that Xu’s husband’s testimony corroborated her own and that her

15   husband was unable to clarify certain discrepancies in her

16   testimony and the record.     See Immig. Ct. Dec. at 16-20.   In

17   addition, as noted above, the agency did not err in relying on

18   Xu’s credible fear interview because it bore sufficient indicia

19   of reliability.     Ming Zhang, 585 F.3d at 723-25.

20       Because the totality of the circumstances supports the

21   agency’s adverse credibility determination, and because all of
                                     6
1    Xu’s    claims   relied   on   the   same   factual   predicate,   the

2    determination is dispositive of asylum, withholding of removal,

3    and CAT relief.     See Paul v. Gonzales, 444 F.3d 148, 156 (2d

4    Cir. 2006)

5           For the foregoing reasons, the petition for review is

6    DENIED.    Since we have completed our review, any stay of removal

7    that the Court previously granted in this petition is VACATED,

8    and any pending motion for a stay of removal in this petition

9    is DISMISSED as moot.      Any pending request for oral argument

10   in this petition is DENIED in accordance with Federal Rule of

11   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

12   34.1(b).

13                                    FOR THE COURT:
14                                    Catherine O=Hagan Wolfe, Clerk




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