     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
