     17-425
     Xue v. Sessions
                                                                                   BIA
                                                                             Poczter, IJ
                                                                          A202 134 546
                            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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 2nd day of August, two thousand eighteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            DENNIS JACOBS,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   LIXIONG XUE,
14            Petitioner,
15
16                     v.                                        17-425
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Gerald Karikari, New York, NY.
24
25   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
26                                     Attorney General; Holly M. Smith,
27                                     Senior Litigation Counsel; Jesse
28                                     D. Lorenz, Trial Attorney, Office
29                                     of Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, DC.
32
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        Petitioner Lixiong Xue, a native and citizen of the

6    People’s Republic of China, seeks review of a January 26,

7    2017, decision of the BIA affirming an April 4, 2016, decision

8    of an Immigration Judge (“IJ”) denying asylum, withholding of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Lixiong Xue, No. A202 134 546 (B.I.A. Jan.

11   26, 2017), aff’g No. A202 134 546 (Immig. Ct. N.Y. City Apr.

12   4, 2016).      We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   the IJ’s decision as supplemented by the BIA.     Yan Chen v.

16   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The applicable

17   standards of review are well established.       See 8 U.S.C.

18   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

19   66 (2d Cir. 2008).

20       “Considering the totality of the circumstances, and all

21   relevant factors, a trier of fact may base a credibility

22   determination on the demeanor, candor, or responsiveness of


                                    2
1    the applicant or witness, the inherent plausibility of the

2    applicant’s or witness’s account, the consistency between the

3    applicant’s or witness’s written and oral statements . . . ,

4    the internal consistency of each such statement, [and] the

5    consistency of such statements with other evidence of record

6    . . . without regard to whether an inconsistency, inaccuracy,

7    or falsehood goes to the heart of the applicant’s claim.”

8    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-

9    64.   Substantial evidence supports the agency’s determination

10   that Xue was not credible as to his claims that officials

11   beat and detained him for attending an unregistered church in

12   China and that he feared similar harm in the future.

13         The agency reasonably relied in part on Xue’s hesitant

14   and vague testimony.      See 8 U.S.C. § 1158(b)(1)(B)(iii);

15   Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005); Jin

16   Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003) (“Where

17   an applicant gives very spare testimony, . . . the IJ . . .

18   may fairly wonder whether the testimony is fabricated . . .

19   [and] may wish to probe for incidental details.”), overruled

20   in part on other grounds by Shi Liang Lin v. U.S. Dep’t of

21   Justice, 494 F.3d 296, 305 (2d Cir. 2007).       The demeanor

22   finding is supported by the record, which reflects that Xue


                                   3
1    was repeatedly prompted for more details, but could not

2    provide many.    There is no merit to Xue’s argument that his

3    vague testimony was caused by translation errors.             The IJ

4    identified one fragmented sentence that was a result of

5    translation    error   and   corrected   a   few   words   that   were

6    mistranslated, and did not rely on those minor errors to

7    question Xue’s demeanor.

8           The demeanor finding and the overall credibility

9    determination are bolstered by record inconsistencies.            See

10   Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d

11   Cir. 2006).    For example, Xue provided dramatically

12   different accounts of the beatings he claimed to have

13   suffered.    See Majidi, 430 F.3d at 79-80.        In his written

14   statements and during his testimony on direct and cross-

15   examination, Xue stated that he was beaten “many times” and

16   described three specific instances that occurred during the

17   course of a year.      However, at the end of his hearing, when

18   the IJ asked him whether “many times” meant approximately

19   5, 10, or 100 times, Xue estimated that he had been beaten

20   “more than 50 times” in one year.        See 8 U.S.C.

21   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166-67 &

22   n.3.    The IJ was not compelled to credit Xue’s explanation


                                      4
1    that he could not remember the exact number of beatings

2    because it did not explain why he could not have estimated

3    or described the sheer volume of attacks.   See Majidi, 430

4    F.3d at 80 (“A petitioner must do more than offer a

5    plausible explanation for his inconsistent statements to

6    secure relief; he must demonstrate that a reasonable fact-

7    finder would be compelled to credit his testimony.”

8    (internal quotations omitted)).

9        The agency also reasonably relied on the following

10   inconsistencies: Xue’s testimony that he was not required

11   to report to court in China was inconsistent with a

12   certificate releasing him on bail pending criminal trial;

13   and his testimony that he dislocated his shoulder was

14   inconsistent with his medical records indicating that he

15   suffered a fracture.   Xue could not explain these

16   discrepancies.

17       Having questioned Xue’s credibility, the agency

18   reasonably relied further on his failure to rehabilitate

19   his testimony with reliable corroborating evidence.    “An

20   applicant’s failure to corroborate his or her testimony may

21   bear on credibility, because the absence of corroboration

22   in general makes an applicant unable to rehabilitate


                                   5
1    testimony that has already been called into question.”

2    Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

3    The IJ reasonably found that Xue’s evidence did not

4    corroborate his testimony regarding the harm he suffered

5    and feared at the hands of village officials because his

6    proffered witness did not have knowledge of events in China

7    and his evidence from those who did have knowledge was

8    inconsistent with his testimony.

9        Given Xue’s demeanor, inconsistent statements and

10   evidence, and lack of corroboration, the agency’s adverse

11   credibility determination is supported by substantial

12   evidence.*   See 8 U.S.C. § 1158(b)(1)(B)(iii).   Contrary to

13   Xue’s argument, the credibility determination was

14   dispositive of both his claims of past harm and fear of




     * The IJ may have erred in relying on Xue’s mother’s failure
     to mention in her letter that she witnessed village officials
     beat her son in their home, that she took him to the hospital,
     and that he was beaten approximately 50 times because the
     letter did not create any inconsistencies but was simply
     vague. See Hong Fei Gao, 891 F.3d at 81. Nevertheless, the
     other record inconsistencies along with Xue’s dramatically
     differing accounts of past harm constituted substantial
     evidence in support of the adverse credibility determination.
     See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339
     (2d Cir. 2006) (providing that the Court need not remand
     despite error in an adverse credibility determination if it
     “can state with confidence that the same decision would be
     made on remand.”).
                                    6
1    future persecution.    In his asylum application, Xue

2    asserted a fear that village officials would beat him in

3    the future because they had done so in the past.    And he

4    did not testify to any fear of future harm in China or any

5    basis for such fear except his past encounters with village

6    officials.    Accordingly, because Xue’s claims of past harm

7    and fear of future harm were based on the same factual

8    predicate and evidence, the adverse credibility

9    determination was dispositive of asylum, withholding of

10   removal, and CAT relief.    See Paul v. Gonzales, 444 F.3d

11   148, 156-57 (2d Cir. 2006).

12       For the foregoing reasons, the petition for review is

13   DENIED.    As we have completed our review, any stay of removal

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

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

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

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

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

19   34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe
22                                 Clerk of Court




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