     15-855
     He v. Lynch
                                                                                       BIA
                                                                                 Loprest, IJ
                                                                               A087 434 520
                        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   16th day of August, two thousand sixteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DENNY CHIN,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   GUO BIN HE,
14            Petitioner,
15
16                 v.                                                15-855
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Mona Liza F. Lao, New York, New York.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Shelley
27                                       R. Goad, Assistant Director; Russell
28                                       J.E. Verby, Senior Litigation
29                                       Counsel, Office of Immigration
30                                       Litigation, United States
31                                       Department of Justice, Washington,
32                                       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 Guo Bin He, a native and citizen of the People’s

6    Republic of China, seeks review of a February 23, 2015, decision

7    of the BIA affirming a May 31, 2013, decision of an Immigration

8    Judge (“IJ”) denying He’s application for asylum, withholding

9    of removal, and relief under the Convention Against Torture

10   (“CAT”).    In re Guo Bin He, No. A087 434 520 (B.I.A. Feb. 23,

11   2015), aff’g No. A087 434 520 (Immig. Ct. N.Y. City May 31,

12   2013).    We assume the parties’ familiarity with the underlying

13   facts and procedural history in this case.

14       We have reviewed both the IJ’s and the BIA’s opinions.

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

16   applicable standards of review are well established.             See

17   8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

18   165-66 (2d Cir. 2008).      For asylum applications like He’s,

19   governed by the REAL ID Act, the agency may, “[c]onsidering the

20   totality of the circumstances . . . base a credibility

21   determination on the demeanor, candor, or responsiveness of the

22   applicant   or   witness,   the   inherent   plausibility   of   the

23   applicant’s or witness’s account,” and inconsistencies in an


                                       2
1    applicant’s statements and other record evidence “without

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

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

4    at 163-64.   The agency’s adverse credibility determination is

5    based on substantial evidence.

6        The IJ reasonably relied on He’s admission, on cross

7    examination, that he fabricated the entire claim of past harm

8    that he provided during his credible fear interview.     See Siewe

9    v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007); Xian Tuan Ye v.

10   DHS, 446 F.3d 289, 295 (2d Cir. 2006).       Given He’s lie under

11   oath to avoid removal, the IJ was not required to credit He’s

12   explanation—that the smuggler told him to lie in order to stay

13   in the country, work, and pay the smuggler back.       Siewe, 480

14   F.3d at 170; Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).

15       The IJ reasonably found that He’s hearing testimony and

16   that of his witness further undermined his credibility.        He

17   testified he passed out flyers with his witness, but the witness

18   denied they had ever done so.       The IJ was entitled to rely on

19   this inconsistency, which undermined He’s claim that he is a

20   practicing Christian.   Xiu Xia Lin, 534 F.3d at 163-64.

21       The IJ also cited He’s demeanor:      he provided unresponsive

22   or vague answers throughout cross examination.       We generally

23   afford particular deference to an IJ’s assessment of an


                                     3
1    applicant’s demeanor.      Jin Chen v. U.S. Dep’t of Justice, 426

2    F.3d 104, 113 (2d Cir. 2005).

3        Accordingly,        considering     the     totality       of     the

4    circumstances,    the    agency’s   credibility   determination        is

5    supported    by   substantial       evidence.       See    8        U.S.C.

6    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64; Siewe,

7    480 F.3d at 170.        The adverse credibility determination is

8    dispositive of He’s claims for asylum, withholding of removal

9    and CAT, as all three claims were based on the same factual

10   predicate.    See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

11   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, Clerk




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