         13-1048
         Lian v. Holder
                                                                                       BIA
                                                                                 Nelson, I.J.
                                                                               A089 855 319
                           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 7th day of July, two thousand fourteen.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                REENA RAGGI,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       LONG CHUN LIAN,
14                Petitioner,
15
16                        v.                                    13-1048
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Long Chun Lian, pro se, Brooklyn,
24                                     New York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Ernesto H. Molina, Jr.,
28                                     Assistant Director; Tracey N.
29                                     McDonald, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 4   review is DISMISSED in part and DENIED in part.

 5       Long Chun Lian, a native and citizen of China, seeks

 6   review of a February 28, 2013 decision of the BIA affirming

 7   the February 23, 2011 decision of an Immigration Judge

 8   (“IJ”), denying his application for asylum, withholding of

 9   removal, and relief under the Convention Against Torture

10   (“CAT”).   In re Long Chun Lian, No. A089 855 319 (B.I.A.

11   Feb. 28, 2013), aff’g No. A089 855 319 (Immig. Ct. N.Y. City

12   Feb. 23, 2011).   We assume the parties’ familiarity with the

13   underlying facts and procedural history of this case.

14       Under the circumstances of this case, we have reviewed

15   both the BIA’s and IJ’s decisions.     See Zaman v. Mukasey,

16   514 F.3d 233, 237 (2d Cir. 2008).    The applicable standards

17   of review are well established.     See 8 U.S.C.

18   § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

19   162, 165-66 (2d Cir. 2008).

20       We dismiss the petition as to asylum because we lack

21   jurisdiction to review the agency’s determination that

22   Lian’s asylum application is untimely.     See 8 U.S.C.

23   § 1158(a)(2)(B), (3).   Although we retain jurisdiction to

                                   2
 1   review “constitutional claims or questions of law,” 8 U.S.C.

 2   § 1252(a)(2)(D), Lian argues only that his relative’s

 3   testimony should have been sufficient to establish his time

 4   of entry.   Although Lian uses the words “due process,” his

 5   argument merely disputes the agency’s factual findings and

 6   does not raise a reviewable constitutional claim.      See Xiao

 7   Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 333 (2d Cir.

 8   2006).

 9       We deny the petition as to withholding of removal and

10   CAT relief because the agency’s adverse credibility

11   determination is supported by substantial evidence.     The

12   adverse credibility determination is supported by

13   inconsistencies in the record and omissions in Lian’s asylum

14   application.   First, the agency reasonably relied on Lian’s

15   omission of information regarding past harm from his

16   application.   See Xiu Xia Lin, 534 F.3d at 164 (“in

17   evaluating an . . . applicant’s credibility, an IJ may rely

18   on omissions and inconsistencies”); see also 8 U.S.C.

19   §§ 1158(b)(1)(B)(iii) (“a trier of fact may base a

20   credibility determination on . . . the consistency between

21   the applicant’s or witness’s written and oral statements ...

22   [and] the internal consistency of each such statement”).


                                   3
 1   The application states that Lian was beaten once, but Lian

 2   testified that he was beaten three or four times.     Whether

 3   Lian’s failure to identify each beating in his application

 4   is considered an omission, or if the application is

 5   considered inconsistent with his testimony, this discrepancy

 6   supports the adverse credibility determination.     Lian’s

 7   explanation–merely a restatement that he did not include the

 8   information–was insufficient to compel a reasonable fact

 9   finder to conclude that his testimony was credible.     See

10   Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.

11   2005)(providing that a petitioner “must demonstrate that his

12   explanation for a discrepancy would compel a reasonable

13   fact-finder to credit his testimony”) (internal quotation

14   marks and citations omitted)).

15       The agency also reasonably relied on the implausibility

16   of Lian’s testimony about his church attendance in New York.

17   Lian testified that he lived in Florida from 2008 to 2010,

18   but attended church in New York during that period by taking

19   a 30-hour round-trip bus ride two or three times each month.

20   Although the claimed travel may have been literally

21   possible, the agency did not err in finding Lian’s testimony

22   about it implausible.   In addition, testimony regarding his

23   salary was incompatible with the amount he would have had to

                                   4
 1   spend on bus tickets and on payments to the snakehead who

 2   transported him to the United States.   Wensheng Yan v.

 3   Mukasey, 509 F.3d 63, 67 (2d Cir. 2009) (holding that where

 4   the IJ’s findings are “tethered to record evidence, and

 5   there is nothing else in the record from which a firm

 6   conviction of error could properly be derived,” an inherent

 7   implausibility finding should not be disturbed).

 8       Given Lian’s omissions regarding past harm as well as

 9   his implausible testimony regarding his church attendance,

10   the record supports the agency’s adverse credibility

11   determination.   See Xiu Xia Lin, 534 F.3d at 167.   Because

12   all of Lian’s claims share the same factual predicate, the

13   adverse credibility determination is also dispositive of his

14   claims for withholding of removal and CAT relief.    See Paul

15   v. Gonzales, 444 F.3d 148, 155-57 (2d Cir. 2006).

16       For the foregoing reasons, the petition for review is

17   DISMISSED, in part, and DENIED, in part.   As we have

18   completed our review, the pending motion for a stay of

19   removal in this petition is DISMISSED as moot.

20                               FOR THE COURT:
21                               Catherine O’Hagan Wolfe, Clerk
22




                                   5
