         12-849
         He v. Holder
                                                                                        BIA
                                                                               Balasquide, IJ
                                                                               A087 443 521
                         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 13th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                DEBRA ANN LIVINGSTON,
 8                DENNY CHIN,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       FENG MING HE,
14                Petitioner,
15
16                      v.                                      12-849
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Troy Nader Moslemi, Moslemi and
24                                     Associates, Inc., New York, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Emily Anne
28                                     Radford, Assistant Director; Aric A.
29                                     Anderson, Trial Attorney, Office of
 1                          Immigration Litigation, United
 2                          States Department of Justice,
 3                          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 DENIED.

 9       Feng Ming He, a native and citizen of the People’s

10   Republic of China, seeks review of a February 7, 2012,

11   decision of the BIA affirming the January 25, 2010, decision

12   of Immigration Judge (“IJ”) Javier Balasquide, which denied

13   his application for asylum, withholding of removal and

14   relief under the Convention Against Torture (“CAT”).     In re

15   Feng Ming He, No. A087 443 521 (B.I.A. Feb. 7, 2012), aff’g

16   No. A087 443 521 (Immig. Ct. N.Y. City Jan. 25, 2010).    We

17   assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       Under the circumstances of this case, we have reviewed

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

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

22   applicable standards of review are well-established.     See

23   8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,

24   534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).



                                  2
 1       For asylum applications, such as He’s, governed by the

 2   amendments made to the Immigration and Nationality Act by

 3   the REAL ID Act of 2005, the agency may, considering the

 4   totality of the circumstances, base a credibility finding on

 5   the applicant’s inconsistent testimony, without regard to

 6   whether the inconsistencies go “to the heart of the

 7   applicant’s claim.”   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

 8   Xia Lin, 534 F.3d at 167.

 9       The agency found that He was incredible based on his

10   inconsistent testimony regarding his son’s birth, baptism,

11   and death.   He challenges the adverse credibility

12   determination, contending that the inconsistencies were

13   merely minor, and that they can be explained by memory

14   issues and psychological trauma.   However, the agency “may

15   rely on any inconsistency [] in making an adverse

16   credibility determination,” where, as here, the totality of

17   the circumstances establishes the applicant is incredible.

18   Xiu Xia Lin, 534 F.3d at 167 (emphasis in original).     He’s

19   explanations are insufficient to compel the conclusion that

20   his testimony was credible, especially given his statement

21   that his son’s tragic death triggered his interest in

22   Christianity, the basis of his persecution claim.     Majidi v.

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

                                   3
 1       As the only evidence of a threat to He’s life or

 2   freedom depended upon his credibility, the adverse

 3   credibility determination in this case necessarily precludes

 4   success on his claims for asylum, withholding of removal,

 5   and CAT relief.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d

 6   Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

 7   520, 523 (2d Cir. 2005).

 8       For the foregoing reasons, the petition for review is

 9   DENIED.

10                               FOR THE COURT:
11                               Catherine O’Hagan Wolfe, Clerk




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