         12-4621
         Xu v. Lynch
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A094 824 812
                         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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 25th day of November, two thousand fifteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                PETER W. HALL,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       YINGYU XU,
14                Petitioner,
15
16                     v.                                       12-4621
17                                                              NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Lewis G. Hu, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Anthony P. Nicastro, Senior
27                                     Litigation Counsel; D. Nicholas
28                                     Harling, 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

 4   is DENIED.

 5       Yingyu Xu, a native and citizen of China, seeks review

 6   of an October 26, 2012, order of the BIA, affirming the

 7   February 18, 2011, decision of an Immigration Judge (“IJ”),

 8   denying asylum, withholding of removal, and relief under the

 9   Convention Against Torture (“CAT”).    In re Yingyu Xu, No.

10   A094 824 812 (B.I.A. Oct. 26, 2012), aff’g No. A094 824 812

11   (Immig. Ct. New York City Feb. 18, 2011).   We assume the

12   parties’ familiarity with the underlying facts and

13   procedural history in this case.

14       Under the circumstances of this case, we review the

15   IJ’s decision as modified by the BIA, i.e., minus the bases

16   for the IJ’s credibility determination that the BIA

17   expressly declined to consider.    See Xue Hong Yang v. U.S.

18   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); see also

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

20   The applicable standards of review are well established.

21   See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

22   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).

23

                                  2
 1       For applications such as Xu’s, which are governed by

 2   the REAL ID Act, the agency may base a credibility finding

 3   on an applicant’s demeanor, the plausibility of her account,

 4   and inconsistencies in her statements, without regard to

 5   whether they go “to the heart of the applicant’s claim.”     8

 6   U.S.C. § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N.

 7   Dec. 260, 265 (B.I.A. 2007).   “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

10   could make such an adverse credibility ruling.”    Xiu Xia

11   Lin, 534 F.3d at 167.

12       Initially, Xu does not contest the agency’s reliance on

13   the inconsistency between her application and testimony

14   about whether police confiscated materials from her pastor’s

15   home during the raid on her underground church.    That

16   inconsistency stands as a proper basis for the credibility

17   determination.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Shunfu Li

18   v. Mukasey, 529 F.3d 141, 146-47 (2d Cir. 2008).

19       The agency also properly relied on Xu’s hesitant,

20   fidgety, and non-responsive demeanor in finding her not

21   credible.   See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Tu

22   Lin v. Gonzales, 446 F.3d 395, 400-01 (2d Cir. 2006)


                                    3
 1   (“Demeanor is virtually always evaluated subjectively and

 2   intuitively, and an IJ therefore is accorded great deference

 3   . . . .”) (citations omitted)).     The record reflects that Xu

 4   testified hesitantly or evasively on several occasions.      It

 5   further reflects that she became hesitant and fidgety when

 6   asked what family planning officials had done to harass her

 7   and that she took an extremely long time to answer this

 8   simple question.   The IJ was not compelled to credit Xu’s

 9   explanations that she had a headache and was car sick,

10   explanations contradicted by her attorney, who consulted

11   with Xu off the record, and told the IJ that Xu was merely

12   nervous.   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

13   Cir. 2005) (explaining that an IJ need not credit an

14   applicant’s explanations for inconsistencies in the record

15   unless a reasonable fact-finder would be compelled to do

16   so).   The agency also was not compelled to credit Xu’s

17   explanation that she was nervous.     See id.; cf. Ming Zhang

18   v. Holder, 585 F.3d 715, 725 (2d Cir. 2009).     We decline to

19   consider in the first instance Xu’s unexhausted arguments

20   that her negative demeanor was the result of her poor

21   education, an unspecified emotional problem, and the use of

22   two different interpreters.   See Lin Zhong v. U.S. Dep’t of

23   Justice, 480 F.3d 104, 107 n.1, 120-23 (2d Cir. 2007).

                                   4
 1       Given Xu’s inconsistent testimony and demeanor, the

 2   totality of the circumstances supports the agency’s adverse

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

 4   167; see also Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d

 5   99, 109 (2d Cir. 2006) (“We can be still more confident in

 6   our review of observations about an applicant’s demeanor

 7   where, as here, they are supported by specific examples of

 8   inconsistent testimony.”).   The agency therefore did not err

 9   in denying asylum, withholding of removal and CAT relief,

10   because all claims shared the same factual predicate.*   See

11   Paul v. Gonzales, 444 F.3d 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

14   removal that the Court previously granted in this petition

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

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

17   oral argument in this petition is DENIED in accordance with

18




           *
             The BIA incorrectly concluded that Xu failed to
       exhaust a challenge to the IJ’s denial of CAT relief.
       The IJ’s only basis for denying CAT relief was the
       adverse credibility determination; so Xu’s challenge to
       the credibility determination constituted a challenge to
       the denial of that form of relief.

                                   5
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5
6




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