         13-1937
         Lu v. Holder
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A200 924 659
                          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 10th day of November, two thousand fourteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                DEBRA ANN LIVINGSTON,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       XIN LU,
14                      Petitioner,
15
16                      v.                                      13-1937
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Xin Miao, Flushing, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Ernesto H. Molina, Jr.,
27                                     Assistant Director; Bernard Joseph,
28                                     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       Petitioner Xin Lu, a native and citizen of China, seeks

 6   review of an April 19, 2013 order of the BIA, affirming the

 7   August 16, 2011 decision of an Immigration Judge (“IJ”),

 8   which denied asylum, withholding of removal, and relief

 9   under the Convention Against Torture (“CAT”).     In re Xin Lu,

10   No. A200 924 659 (B.I.A. April 19, 2013), aff’g No. A200 924

11   659 (Immig. Ct. N.Y. City Aug. 16, 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 supplemented by the BIA.     See Yan Chen v.

16   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The applicable

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

18   § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

19   510, 513 (2d Cir. 2009).

20       For applications such as Lu’s, which are governed by

21   the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231,

22   the agency may base a credibility finding on an applicant’s

23   demeanor, the plausibility of his account, and

                                  2
 1   inconsistencies in his statements, without regard to whether

 2   they go “to the heart of the applicant’s claim.”     8 U.S.C. §

 3   1158(b)(1)(B)(iii).   “We defer therefore to an IJ’s

 4   credibility determination unless, from the totality of the

 5   circumstances, it is plain that no reasonable fact-finder

 6   could make such an adverse credibility ruling.”    Xiu Xia Lin

 7   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).

 8       Here, the IJ’s adverse credibility determination is

 9   supported by substantial evidence.   The IJ reasonably based

10   his credibility finding on Lu’s non-responsive answers to

11   questions concerning Lu’s relationship with his aunt and the

12   difference between government and underground churches.     See

13   8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin,

14   534 F.3d at 167.   While Lu takes issue with the IJ’s

15   characterization of his testimony as non-responsive, the

16   IJ’s findings are clearly supported by the hearing

17   transcript.   Moreover, the IJ was not required to credit

18   Lu’s explanation that he was either confused or

19   misunderstood the relevant questions.   See Majidi v.

20   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (providing that

21   the agency need not credit an applicant’s explanations for

22



                                   3
 1   inconsistent testimony unless those explanations would

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

 3       The IJ also reasonably relied on inconsistencies

 4   between Lu’s testimony and the documentary evidence.     See 8

 5   U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin,

 6   534 F.3d at 167.   Lu’s testimony that a fellow underground

 7   church attendee opened the door for police officers during a

 8   May 2009 underground church service was contrary to a

 9   statement in his asylum application that police officers

10   broke down the door before arresting those in attendance.

11   Lu also testified that he first learned that his aunt was

12   Christian when he saw a Bible in her home in 2004, several

13   months after Lu’s uncle had returned home from the hospital.

14   However, Lu stated in his asylum application that his uncle

15   returned home from the hospital in 2003.     The IJ was not

16   required to credit Lin’s explanations for these

17   inconsistencies.   See Majidi, 430 F.3d at 80-81.

18       Lu argues that the IJ should have permitted his witness

19   to correct testimony that was inconsistent with Lu’s own

20   testimony.   However, the BIA reasonably exercised its “broad

21   discretion” to deny remand on the basis of the witness’s

22   affidavit because the affidavit related to only one of the


                                   4
 1   credibility finding and therefore would not have altered the

 2   outcome of the case.   See Li Yong Cao v. U.S. Dep’t of

 3   Justice, 421 F.3d 149, 156 (2d Cir. 2005).    Given Lu’s

 4   inconsistent and non-responsive testimony, the totality of

 5   the circumstances support the agency’s adverse credibility

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

 7       Finally, contrary to Lu’s argument on appeal, the

 8   agency did not err in denying Lu’s claim for CAT relief

 9   without conducting an independent analysis.   Because the

10   only evidence that Lu was likely to be tortured depended on

11   his credibility, the IJ’s adverse credibility determination

12   necessarily precludes success on a claim for CAT relief.

13   See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

14   523 (2d Cir. 2005); cf. Ramsameachire v. Ashcroft, 357 F.3d

15   169, 184-85 (2d Cir. 2004) (holding that the agency may not

16   deny a CAT claim solely on the basis of an adverse

17   credibility finding made in the asylum context, where the

18   CAT claim did not turn on credibility).

19            For the foregoing reasons, the petition for review

20   is DENIED.   As we have completed our review, any stay of

21   removal that the Court previously granted in this petition

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

23   this petition is DISMISSED as moot.   Any pending request for
                                   5
1   oral argument in this petition is DENIED in accordance with

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

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7




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