     14-4063
     Lu v. Lynch
                                                                                        BIA
                                                                               Balasquide, IJ
                                                                               A099 772 284
                        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   28th day of March, two thousand sixteen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            GUIDO CALABRESI,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   SHUN XING LU,
14            Petitioner,
15
16                 v.                                                14-4063
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Dehai Zhang, Flushing, New York.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Keith
27                                       McManus, Senior Litigation Counsel;
28                                       Sunah Lee, Trial Attorney, Office of
29                                       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 is

4    DENIED.

5        Petitioner Shun Xing Lu, a native and citizen of the

6    People’s Republic of China, seeks review of an October 21, 2014,

7    decision of the BIA affirming a May 1, 2013, decision of an

8    Immigration Judge (“IJ”) denying Lu’s application for asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).      In re Shun Xing Lu, No. A099 772 284 (B.I.A.

11   Oct. 21, 2014), aff’g No. A099 772 284 (Immig. Ct. N.Y. City

12   May 1, 2013).     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 the

15   entirety   of   the   IJ’s   adverse   credibility   determination,

16   “including the portions not explicitly discussed by the BIA.”

17   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).     The

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

19   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

20   Cir. 2009).


                                       2
1         For asylum applications, like Lu’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    between the applicant’s statements and other evidence, “without

5    regard to whether” they go “to the heart of the applicant’s

6    claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,

7    534 F.3d 162, 163-64 (2d Cir. 2008).   “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.

12        Substantial evidence supports the IJ’s adverse credibility

13   determination, which was based on inconsistencies within Lu’s

14   testimony and a lack of corroborating evidence.    For instance,

15   Lu initially testified that he went into hiding in China in

16   February 2007, but later stated that he misremembered, and

17   changed the date to July 2, 2002.      Lu’s explanation for the

18   inconsistency, that he misremembered, would not compel a

19   reasonable fact-finder to credit his testimony because he had

20   been in the United States for over a year on the date he initially

21   provided.   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.
                                     3
1    2005) (holding that the agency need not credit an applicant’s

2    explanation for inconsistencies unless the explanation would

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

4        Lu also testified that he knew he would have to lie on the

5    previous work authorization petition he filed.        He then changed

6    his testimony, stating that he did not intend to lie but simply

7    signed whatever papers the attorney filled out; he was unable

8    to explain this changing testimony.      The IJ also noted that,

9    regarding his experience as a chef, Lu’s testimony was vague,

10   as he could not remember his address or any details beyond the

11   restaurant’s name and the fact that he worked there for several

12   months.   While the IJ erred in finding Lu’s testimony on this

13   point inconsistent, as Lu had only testified that he did not

14   work as a chef in China, this error does not require remand:

15   the other grounds are sufficient to support the credibility

16   finding, and “there is no realistic possibility that, absent

17   the error[], the IJ or BIA would have reached a different

18   conclusion.”   Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391,

19   401 (2d Cir. 2005).

20       Finally,   the   IJ   reasonably   found   that   Lu’s   lack   of

21   corroborating evidence further undermined his credibility.
                                     4
1    “An applicant’s failure to corroborate his or her testimony may

2    bear on credibility, because the absence of corroboration in

3    general makes an applicant unable to rehabilitate testimony

4    that has already been called into question.”            Biao Yang v.

5    Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).           Lu did not call

6    witnesses or provide affidavits from members of either of the

7    churches he attended in New York, despite his claim that he had

8    introduced   several   people   to    his   church.      Nor   did   he

9    corroborate that the witness who was supposed to testify on his

10   behalf had moved back to China.        See Liu v. Holder, 575 F.3d

11   193, 198 (2d Cir. 2009) (“[T]he alien bears the ultimate burden

12   of introducing such evidence without prompting from the IJ.”).

13       Given the inconsistencies and lack of corroboration,

14   substantial evidence supports the agency’s adverse credibility

15   determination, which is dispositive of asylum, withholding of

16   removal, and CAT relief.    Xiu Xia Lin, 534 F.3d at 167; Paul

17   v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).         Because the

18   credibility determination is dispositive, we do not reach the

19   agency’s alternative findings.       See INS v. Bagamasbad, 429 U.S.

20   24, 25 (1976) (“As a general rule courts and agencies are not


                                      5
1    required to make findings on issues the decision of which is

2    unnecessary to the results they reach.”).

3        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

10   34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O=Hagan Wolfe, Clerk




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