         10-1995-ag
         Dong v. Holder
                                                                                       BIA
                                                                                LaForest, IJ
                                                                               A088 376 087
                           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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 19th day of May, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                       Circuit Judges.
11       ______________________________________
12
13       XING FU DONG,
14                Petitioner,
15
16                        v.                                    10-1995-ag
17                                                              NAC
18       ERIC H. HOLDER, JR.,
19       UNITED STATES ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Veronica Frösen, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Ada E. Bosque, Senior
27                                     Litigation Counsel; Paul T.
28                                     Cygnarowicz, Trial Attorney, Office
29                                     of Immigration Litigation, United
30                                     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

 4   is DENIED.

 5       Xing Fu Dong, a native and citizen of the People’s

 6   Republic of China, seeks review of a April 21, 2010, order

 7   of the BIA affirming the April 15, 2008, decision of

 8   Immigration Judge (“IJ”) Brigitte LaForest, which denied

 9   Dong’s application for asylum, withholding of removal, and

10   relief under the Convention Against Torture (“CAT”).     In re

11   Xing Fu Dong, No. A088 376 087 (B.I.A. Apr. 21, 2010), aff’g

12   No. A088 376 087 (Immig. Ct. N.Y. City Apr. 15, 2008).       We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and the BIA’s opinions.   See Yun-Zui Guan v.

17   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).    The applicable

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

19   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167

20   (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 104

21   (2d Cir. 2008).

22



                                  2
 1          Substantial evidence supports the agency’s adverse

 2   credibility determination.    See Xiu Xia Lin, 534 F.3d at

 3   167.    The IJ reasonably relied on inconsistencies between

 4   Dong’s asylum application and his testimony regarding: (1)

 5   the date he entered the United States; (2) where he was

 6   staying at the time family planning officials destroyed his

 7   home; and (3) where he was staying when family planning

 8   officials were looking for him in 2005.    The IJ also

 9   reasonably relied on Dong’s non-responsive testimony after

10   questions had been repeated to him and his most comfortable

11   dialect had been verified.    See Majidi v. Gonzales, 430 F.3d

12   77, 81 n.1 (2d Cir. 2005) (stating that the Court defers to

13   an IJ’s assessment of demeanor).    Dong’s explanations that

14   he was nervous and confused do not compel us to find error

15   in the IJ’s decision.    See id. at 80-81 (holding that the

16   agency need not credit an applicant’s explanations for

17   inconsistent testimony unless those explanations would

18   compel a reasonable fact-finder to do so).

19          To the extent Dong argues that the discrepancies in his

20   testimony were not significant, the IJ was entitled to rely

21   on the inconsistencies in assessing the totality of the

22   circumstances, no matter how “minor,” because Dong’s


                                    3
 1   application is governed by the Real ID Act.    See 8 U.S.C.

 2   § 1158(b)(1)(B)(iii).    Finally, contrary to Dong’s

 3   assertions, the IJ did not have a duty to further develop

 4   the record because the burden of establishing eligibility

 5   for asylum rested with Dong, see 8 C.F.R. § 208.13(a), and

 6   the IJ did attempt to have Dong clarify his inconsistent

 7   answers.    See Shunfu Li v. Mukasey, 529 F.3d 141, 148 n.5

 8   (2d Cir. 2008) (noting that this Court has not held that an

 9   IJ has a duty to develop the record other than “to identify

10   and probe perceived inconsistencies”).

11       Given the inconsistencies and the demeanor finding, the

12   IJ’s adverse credibility determination was supported by

13   substantial evidence.    See 8 U.S.C. §§ 1158(b)(1)(B)(iii),

14   1252(b)(4)(B).    Because Dong’s claims were all based on the

15   same factual predicate, the agency’s adverse credibility

16   determination was a proper basis for denial of his

17   application for asylum, withholding of removal, and CAT

18   relief.    See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

19   2006).

20       For the foregoing reasons, the petition for review is

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

22   removal that the Court previously granted in this petition


                                    4
 1   is VACATED, and any pending motion for a stay of removal in

 2   this petition is DISMISSED as moot. Any pending request for

 3   oral argument in this petition is DENIED in accordance with

 4   Federal Rule of Appellate Procedure 34(a)(2), and Second

 5   Circuit Local Rule 34.1(b).

 6                                 FOR THE COURT:
 7                                 Catherine O’Hagan Wolfe, Clerk
 8
 9
10




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