     16-2100
     Li v. Sessions
                                                                                       BIA
                                                                                   Sichel, IJ
                                                                               A200 929 061
                           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   11th day of September, two thousand seventeen.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   XIAODUN LI,
14            Petitioner,
15
16                    v.                                             16-2100
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Mike P. Gao, Flushing, NY.
24
25   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
26                                       Attorney General; Stephen J. Flynn,
27                                       Assistant Director; Imran R. Zaidi
28                                       and Arthur L. Rabin, Trial
29                                       Attorneys, Office of Immigration
30                                       Litigation, United States
31                                       Department of Justice, Washington,
32                                       DC.
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 Xiaodun Li, a native and citizen of the People’s

6    Republic of China, seeks review of a June 1, 2016, decision of

7    the BIA affirming a December 8, 2015, decision of an Immigration

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

9    of removal, and relief under the Convention Against Torture

10   (“CAT”).    In re Xiaodun Li, No. A200 929 061 (B.I.A. June 1,

11   2016), aff’g No. A200 929 061 (Immig. Ct. N.Y. City Dec. 8,

12   2015).    We assume the parties’ familiarity with the underlying

13   facts and procedural history in this case.

14       In lieu of filing a brief, the Government moves for summary

15   denial of Li’s petition for review.         Summary denial is

16   warranted only if a petition is frivolous. Pillay v. INS, 45

17   F.3d 14, 17 (2d Cir. 1995); United States v. Davis, 598 F.3d

18   10, 13-14 (2d Cir. 2010).    We decline to address whether this

19   petition is frivolous.    Li has filed his merits brief, thus we

20   treat the Government’s motion as a response to that brief. For

21   the following reasons, we deny the petition.

22       We have considered both the IJ’s and the BIA’s opinions “for

23   the sake of completeness.”     Wangchuck v. Dep’t of Homeland

                                     2
1    Sec., 448 F.3d 524, 528 (2d Cir. 2006).         The applicable

2    standards of review are well established.         See 8 U.S.C.

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

4    Cir. 2009).

5        Under the REAL ID Act of 2005, the agency may, in light of

6    “the totality of the circumstances,” base an adverse

7    credibility determination on inconsistencies in an applicant’s

8    statements “without regard to whether” those inconsistencies

9    “go[] to the heart of the applicant’s claim.”     8 U.S.C.

10   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534 F.3d

11   162, 167 (2d Cir. 2008).   In conducting “substantial evidence”

12   review, “we defer . . . to an IJ’s credibility determination

13   unless, from the totality of the circumstances, it is plain that

14   no reasonable fact-finder could make such an adverse

15   credibility ruling.”   Xiu Xia Lin, 534 F.3d at 167.

16       The adverse credibility determination is sound.      At the

17   merits hearing, the Government attorney asked Li if he had ever

18   applied to the immigration service for permission to return to

19   China.   Li answered no.   The Government attorney then showed

20   Li a travel authorization application, which Li confirmed he

21   submitted in September 2013, seeking permission to spend 40 days

22   in China and then return to the United States.



                                    3
1        Li tried to explain his false denial: the application was

2    not granted, and he surmised that it was lost because the

3    associated fee was never deducted from his bank account.        The

4    IJ was not obligated to credit these explanations, particularly

5    given that the Government attorney had asked whether Li had

6    sought--not received--permission to return to China.         Majidi

7    v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (explaining that

8    the agency is not required to credit an explanation that is

9    merely plausible or possible).

10       Nor was the IJ obligated to credit Li’s alternative

11   explanation that his filial duty to his father overcame his fear

12   of returning to China.    As the IJ observed, Li’s attempt to

13   return to China undercut his professed subjective fear of

14   persecution.   In that respect, Li’s inconsistent testimony

15   went to the heart of his claim.       8 U.S.C. § 1158(b)(1)(B)(iii);

16   see also Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,

17   295 (2d Cir. 2006) (holding that a single inconsistency

18   “concerning the nature of [the applicant’s] mistreatment

19   . . . afforded substantial evidence to support the adverse

20   credibility finding”).

21       Li’s false statement supports the agency’s adverse

22   credibility determination.    Siewe v. Gonzales, 480 F.3d 160,

23   170 (2d Cir. 2007) (“[A] single false document or a single

                                       4
1    instance of false testimony may (if attributable to the

2    petitioner) infect the balance of the alien’s uncorroborated

3    or unauthenticated evidence.”).     Li’s asylum, withholding of

4    removal, and CAT claims were all based on the same factual

5    predicate, and so the credibility determination was dispositive

6    as to all three forms of relief.   See Paul v. Gonzales, 444 F.3d

7    148, 156-57 (2d Cir. 2006).

8        For the foregoing reasons, the petition for review is

9    DENIED, and the Government’s motion for summary denial is DENIED

10   as moot.   As we have completed our review, any stay of removal

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

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

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

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

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

16   34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk




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