         12-769
         Xie v. Holder
                                                                                       BIA
                                                                               Van Wyke, IJ
                                                                               A099 163 866
                           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 9th day of April, two thousand thirteen.
 5
 6       PRESENT:
 7                PETER W. HALL,
 8                DENNY CHIN,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _______________________________________
12
13       EN XIE,
14                       Petitioner,
15
16                       v.                                     12-769
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                Herman S. Dhade, West Bloomfield,
24                                      Michigan.
25
26       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
27                                      Attorney General; Jennifer L.
28                                      Lightbody, Senior Litigation
29                                      Counsel; Laura M.L. Maroldy, Trial
 1                          Attorney, Office of Immigration
 2                          Litigation, United States Department
 3                          of Justice, Washington, D.C.
 4
 5        UPON DUE CONSIDERATION of this petition for review of a

 6   Board of Immigration Appeals (“BIA”) decision, it is hereby

 7   ORDERED, ADJUDGED, AND DECREED that the petition for review

 8   is DISMISSED in part and DENIED in part.

 9        En Xie, a native and citizen of China, seeks review of

10   a February 9, 2012, decision of the BIA affirming the May

11   24, 2010, decision of Immigration Judge (“IJ”) William Van

12   Wyke, which pretermitted his asylum application as untimely,

13   and in the alternative, denied his applications for asylum,

14   withholding of removal, and for relief under the Convention

15   Against Torture (“CAT”) for a lack of credibility.    In re En

16   Xie, No. A099 163 866 (B.I.A. Feb. 9, 2012), aff’g No. A099

17   163 866 (Immig. Ct. N.Y. City May 24, 2010).   We assume the

18   parties’ familiarity with the underlying facts and

19   procedural history in this case.

20   I.   Asylum

21        Xie challenges the agency’s denial of his asylum

22   application as untimely, asserting that he credibly

23   testified that he filed one day before the filing deadline.

24   Although we lack jurisdiction to review timeliness


                                  2
 1   determinations, see 8 U.S.C. § 1158(a)(3), (a)(2)(B), we

 2   retain jurisdiction to review constitutional claims and

 3   “questions of law,” 8 U.S.C. § 1252(a)(2)(D).     Xie does not

 4   raise such a claim or question, however, but merely

 5   disagrees with the agency’s fact-finding.     Thus, we lack

 6   jurisdiction to review this claim.   See Barco-Sandoval v.

 7   Gonzales, 516 F.3d 35, 39 (2d Cir. 2008).

 8   II. Withholding of Removal

 9       Under the circumstances of this case, we have reviewed

10   the IJ’s decision as modified by the BIA.     Yun-Zui Guan v.

11   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).     For

12   applications such as Xie’s, governed by the amendments made

13   to the Immigration and Nationality Act by the REAL ID Act of

14   2005, the agency may, considering the totality of the

15   circumstances, base a credibility finding on the applicant’s

16   “demeanor, candor, or responsiveness,” the plausibility of

17   his account, and inconsistencies in his statements, without

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

19   claim.”   See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);

20   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

21   We will “defer to an IJ’s credibility determination unless,

22   from the totality of the circumstances, it is plain that no


                                   3
 1   reasonable fact-finder could make” such a ruling.        Xiu Xia

 2   Lin, 534 F.3d at 167.    In this case, the IJ’s adverse

 3   credibility determination is supported by substantial

 4   evidence.

 5       The IJ reasonably based his credibility finding on

 6   discrepancies between Xie’s testimony and his documents, his

 7   non-responsiveness, and his lack of reliable documentary

 8   evidence.   See 8 U.S.C. §§ 1158(b)(1)(B)(iii),

 9   1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167; Biao Yang v.

10   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

11       First, the IJ’s adverse credibility determination was

12   reasonably based on unexplained discrepancies between Xie’s

13   testimony and his documents, including: (1) Xie’s testimony

14   that his family moved from their home in 2004 but his

15   household register stated he moved in 1993; and (2) his

16   testimony that he had lived in Massachusetts and Michigan,

17   while his asylum application listed only one address, which

18   was in New York.     The IJ reasonably relied on these and

19   other inconsistencies in making his adverse credibility

20   determination.     See 8 U.S.C. §§ 1158(b)(1)(B)(iii),

21   1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167 (providing that

22   an IJ may support an adverse credibility determination with

23   “any inconsistency or omission”).     When questioned, Xie was

                                     4
 1   unable to offer any satisfactory explanation for the

 2   inconsistencies.

 3        Second, the adverse credibility determination is

 4   further supported by Xie’s non-responsiveness.    When the IJ

 5   questioned Xie about why his twin brother, who had been

 6   granted asylum based on the same claims and who lives in the

 7   United States, did not testify on Xie’s behalf, the IJ noted

 8   that Xie provided halting, vague, and stammering responses.

 9   Furthermore, questions about Xie’s work history and previous

10   residences elicited “hesitant, confused, [and] somewhat

11   equivocal” responses that the IJ found unconvincing.

12   Because the IJ’s credibility finding was tied to these

13   instances of non-responsiveness and Xie’s demeanor, we defer

14   to that finding.   See Li Hua Lin v. U.S. Dep’t of Justice,

15   453 F.3d 99, 109 (2d Cir. 2006).

16       Given the discrepancies between Xie’s application and

17   testimony and his lack of responsiveness, the IJ did not err

18   in requiring additional corroboration.   See Chuilu Lui v.

19   Holder, 575 F.3d 193, 198-99 (2d Cir. 2009).     However, Xie’s

20   documents were all photocopies, some of which were not fully

21   translated, and others not signed by the appropriate

22   official.   Furthermore, Xie did not offer his brother’s

23   testimony, in any format, as evidence, though he lives in
                                   5
 1   the United States and allegedly obtained asylum based on the

 2   same hardships that Xie suffered.   8 C.F.R.

 3   § 1158(b)(1)(B)(i); see Chuilu Liu, 575 F.3d at 198; Biao

 4   Yang, 496 F.3d at 273.

 5   III. CAT

 6       Finally, while we do not agree with the government’s

 7   contention that Xie has waived his CAT claim by failing to

 8   meaningfully argue it, the claim fails because it is based

 9   on the same non-credible testimony and documents as Xie’s

10   withholding claim.   See Xue Hong Yang v. U.S. Dep’t of

11   Justice, 426 F.3d 520, 522-23 (2d Cir. 2005).

12       For the foregoing reasons, the petition for review is

13   DISMISSED in part and DENIED in part.   As we have completed

14   our review, any stay of removal that the Court previously

15   granted in this petition is VACATED, and any pending motion

16   for a stay of removal in this petition is DENIED as moot.

17   Any pending request for oral argument is DENIED in

18   accordance with Federal Rule of Appellate Procedure

19   34(a)(2), and Second Circuit Local Rule 34(d)(1).

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




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