     16-4074
     He v. Sessions
                                                                                   BIA
                                                                               Sichel, IJ
                                                                           A200 748 061
                           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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 12th day of July, two thousand eighteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            REENA RAGGI,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   XIANG JIAN HE,
14            Petitioner,
15
16                    v.                                         16-4074
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Farah Loftus, Law Office of Farah
24                                    Loftus, Los Angeles, CA.
25
26   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
27                                    Attorney General; Nancy Friedman,
28                                    Senior Litigation Counsel;
29                                    Virginia Lum, Attorney, Office of
30                                    Immigration Litigation, United
1                                 States Department of Justice,
2                                 Washington, DC.
3
4        UPON DUE CONSIDERATION of this petition for review of a

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

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

7    is DENIED.

8        Petitioner Xiang Jian He, a native and citizen of the

9    People’s Republic of China, seeks review of a November 17,

10   2016 decision of the BIA affirming a January 22, 2016 decision

11   of an Immigration Judge (“IJ”) denying He’s application for

12   asylum,   withholding   of   removal,   and   relief   under   the

13   Convention Against Torture (“CAT”). In re Xiang Jian He, No.

14   A 200 748 061 (B.I.A. Nov. 17, 2016), aff’g No. A 200 748 061

15   (Immig. Ct. N.Y. City Jan. 22, 2016). We assume the parties’

16   familiarity with the underlying facts and procedural history

17   in this case.

18       Under the circumstances of this case, we review both

19   the IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432

20   F.3d 391, 394 (2d Cir. 2005). We review the agency’s

21   adverse credibility determination to assess whether it is

22   supported by substantial evidence. 8 U.S.C.

23   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

24   66 (2d Cir. 2008). The agency may, “[c]onsidering the
                                     2
1    totality of the circumstances,” base an adverse credibility

2    determination on discrepancies between an applicant’s and a

3    witness’s testimony, as well as on internal inconsistencies

4    in an applicant’s testimony. 8 U.S.C. § 1158(b)(1)(B)(iii);

5    Xiu Xia Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s

6    credibility determination unless . . . it is plain that no

7    reasonable fact-finder could make such an adverse

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

9    review of the record, we conclude that substantial evidence

10   supports the agency’s adverse credibility finding, as

11   inconsistencies called into question He’s account of his

12   practice of Christianity as well as of relevant past

13   events.

14       First, the agency reasonably relied on an inconsistency

15   in the testimony presented regarding the place of He’s

16   baptism. 8 U.S.C. § 1158(b)(1)(B)(iii). He asserted that

17   the baptism took place in China in 2008, whereas his pastor

18   in New York testified to having baptized He in December

19   2013 in New York and averred that he would not have

20   baptized someone who had previously been baptized. Although

21   He argues otherwise, this was not a minor inconsistency.

22   The significance of the circumstances of He’s baptism is

                                  3
1    underscored by He’s statement that he did not consider

2    himself a “real Christian” until his baptism in 2008. This

3    inconsistency undermined He’s overall credibility with

4    respect to his statements about his Christianity. See Siewe

5    v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] single

6    false document or a single instance of false testimony may

7    (if attributable to the petitioner) infect the balance of

8    the alien’s uncorroborated or unauthenticated evidence.”).

9    He has not offered any explanation for the discrepancy.

10       Second, He and his cousin gave conflicting testimony

11   about whether the two attended church together in New York.

12   This conflict further undermined He’s claim to be a

13   practicing Christian. 8 U.S.C. § 1158(b)(1)(B)(iii). He

14   initially testified that they never attended church

15   together, and confirmed his testimonial statement several

16   times. After He’s cousin testified that they attended

17   church together, however, He changed his testimony. He has

18   not provided a compelling explanation for the inconsistency

19   in his testimony. See Majidi v. Gonzales, 430 F.3d 77, 80

20   (2d Cir. 2005) (“A petitioner must do more than offer a

21   plausible explanation for his inconsistent statements to

22   secure relief; he must demonstrate that a reasonable fact-

                                  4
1    finder would be compelled to credit his testimony.”

2    (quotation marks omitted)).

3        Third, in his adverse credibility finding, the IJ

4    reasonably relied on the inconsistent statements made by He

5    about injuries he allegedly incurred as a result of a 2007

6    detention and beating in China. He’s application mentioned

7    the detention and beating, but did not describe any such

8    injuries. On cross-examination, He affirmed that the

9    beating caused internal injuries and broken bones; but on

10   redirect, He clarified that he suffered only cuts and

11   bruises. This inconsistency relates directly to He’s

12   allegation of past persecution and calls into question the

13   entirety of his claim that he was arrested and beaten for

14   attending an underground church. 8 U.S.C.

15   § 1158(b)(1)(B)(iii); cf. Xian Tuan Ye v. Dep’t of Homeland

16   Sec., 446 F.3d 289, 295 (2d Cir. 2006) (“[A] material

17   inconsistency in an aspect of [an applicant’s] story that

18   served as an example of the very persecution from which he

19   sought asylum . . . afforded substantial evidence to

20   support the adverse credibility finding.”).

21       Considering   these   discrepancies     relating   to   He’s

22   baptism, church attendance, and injuries, in the totality of

                                   5
1    the circumstances presented, we conclude that substantial

2    evidence supports the agency’s ruling. Siewe, 480 F.3d at

3    170; Xiu Xia Lin, 534 F.3d at 166-67. Because He’s claims

4    were all based on the same factual predicate, the adverse

5    credibility   determination    is   dispositive   of     asylum,

6    withholding of removal, and CAT relief. Paul v. Gonzales, 444

7    F.3d 148, 156-57 (2d Cir. 2006).

8        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

15   34.1(b).

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




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