         12-645
         Lu v. Holder
                                                                                        BIA
                                                                                   Cheng, IJ
                                                                               A089 113 956
                         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 15th day of July, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                DEBRA ANN LIVINGSTON,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       YONG F. LU, AKA YONG FENG LU,
14                Petitioner,
15
16                      v.                                      12-645
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Richard Tarzia, Belle Mead, N.J.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; James A. Hunolt,
27                                     Senior Litigation Counsel; David
28                                     Schor, 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       Yong F. Lu, a native and citizen of the People’s

 6   Republic of China, seeks review of a January 20, 2012,

 7   decision of the BIA affirming the April 16, 2010, decision

 8   of Immigration Judge (“IJ”) Mary Cheng, which denied his

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).    In re Yong F.

11   Lu, No. A089 113 956 (B.I.A. Jan. 20, 2012), aff’g No. A089

12   113 956 (Immig. Ct. N.Y. City Apr. 16, 2010).    We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as supplemented by the BIA.    See Yan Chen

17   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The

18   applicable standards of review are well-established.     See

19   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

20   510, 513 (2d Cir. 2009).   For applications such as Lu’s,

21   governed by the amendments to the Immigration and

22   Nationality Act by the REAL ID Act of 2005, the agency may,

23   considering the totality of the circumstances, base a

                                   2
 1   credibility determination on the “demeanor, candor, or

 2   responsiveness of the applicant[, and] the consistency of

 3   [the applicant’s] statements with other evidence of record

 4   [], without regard to whether an inconsistency, inaccuracy,

 5   or falsehood goes to the heart of the applicant’s claim.”

 6   8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v.

 7   Mukasey, 534 F.3d 162, 166-67 (2d Cir. 2008) (per curiam).

 8       Lu challenges the agency’s adverse credibility

 9   determination, which was based on his demeanor, inconsistent

10   testimony, application omissions, and insufficient

11   corroboration.   Initially, as Lu does not allege that the

12   demeanor findings were based on a misstatement in the

13   record, cf. Li Zu Guan v. INS, 453 F.3d 129, 139-40 (2d Cir.

14   2006), we defer to the agency’s determination that his

15   testimony was “non-responsive, evasive, and rehearsed,” see

16   Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d

17   Cir. 2005); Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d

18   99, 109 (2d Cir. 2006).

19       Moreover, contrary to Lu’s contention, the agency

20   reasonably relied on his inconsistent testimony about the

21   alleged beating he sustained during his detention, as he

22   stated during his credible fear interview that police


                                   3
 1   officers grabbed a folding chair and hit him with it, but he

 2   failed to include that information in his testimony, even

 3   after prompting by the IJ.   See Xiu Xia Lin, 534 F.3d at

 4   166-67; Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.

 5   2005).   In addition, the agency did not err in finding that

 6   an omission in Jiang’s application – that his beating

 7   required medical attention – was sufficiently dramatic as to

 8   undermine his credibility.   See Xiu Xia Lin, 534 F.3d at

 9   167; Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111-12 (2d Cir.

10   2005).   The agency did not err in declining to credit Lu’s

11   explanations that he initially misunderstood some of the

12   questions, and that he did not believe the medical records

13   were important for his claim.       See Majidi, 430 F.3d at 80-81

14   (“A petitioner must do more than offer a plausible

15   explanation for his inconsistent statements to secure

16   relief; he must demonstrate that a reasonable fact-finder

17   would be compelled to credit his testimony.” (emphasis

18   retained) (internal citation and quotation marks omitted)).

19       Finally, the agency reasonably concluded that Lu failed

20   to rehabilitate his testimony as he did not produce any

21   evidence to corroborate his claim that he received medical

22   treatment upon his release from detention.       See Biao Yang v.


                                     4
 1   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per curiam);

 2   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d

 3   Cir. 2006).

 4       As Lu does not allege an independent factual predicate

 5   for relief apart from his non-credible testimony, and as the

 6   only evidence of a threat to his life or freedom depended on

 7   his credibility, the adverse credibility determination in

 8   this case is dispositive of his claims for asylum,

 9   withholding of removal, and CAT relief.    See Paul v.

10   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.

11   U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

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

16   this petition is DISMISSED as moot.    Any pending request for

17   oral argument in this petition is DENIED in accordance with

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

19   Circuit Local Rule 34.1(b).

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




                                    5
