         12-1222
         Ke v. Holder
                                                                                       BIA
                                                                                 Vu Bain, IJ
                                                                               A087 462 998
                          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 6th day of November, two thousand thirteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                RALPH K. WINTER,
10                SUSAN L. CARNEY,
11                     Circuit Judges.
12       _____________________________________
13
14       SHUN KE,
15                      Petitioner,
16
17                      v.                                      12-1222
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Nataliya I. Gavlin, New York, New
25                                     York.
26
27       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
28                                     Attorney General; Jennifer Williams,
29                                     Senior Litigation Counsel; Dara S.
 1                            Smith, Trial Attorney, Office of
 2                            Immigration Litigation, United
 3                            States Department of Justice,
 4                            Washington, D.C.
 5
 6          UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DISMISSED in part and DENIED in part.

10          Shun Ke, a native and citizen of the People’s Republic

11   of China, seeks review of a February 29, 2012, decision of

12   the BIA affirming the January 12, 2010, decision of

13   Immigration Judge (“IJ”) Quynh Vu Bain, which pretermitted

14   his application for asylum and denied his application for

15   withholding of removal and relief under the Convention

16   Against Torture (“CAT”).    In re Shun Ke, No. A087 462 998

17   (B.I.A. Feb. 29, 2012), aff’g No. A087 462 998 (Immig. Ct.

18   N.Y. City Jan. 12, 2010).    We assume the parties’

19   familiarity with the underlying facts and procedural history

20   in this case.

21          Under the circumstances of this case, we have reviewed

22   the decision of the IJ as modified and supplemented by the

23   BIA.    See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

24   2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

25   522 (2d Cir. 2005).    The applicable standards of review are

                                    2
 1   well-established.     See 8 U.S.C. § 1252(b)(4)(B); see also

 2   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

 3   I.   Asylum

 4        An asylum applicant must demonstrate “by clear and

 5   convincing evidence,” through credible testimony or reliable

 6   corroborating evidence, that he filed his application within

 7   one year after the date of his “arrival in the United

 8   States.”   8 U.S.C. § 1158(a)(2)(B).   While this Court lacks

 9   jurisdiction to review the administrative determination that

10   an asylum application is untimely, it retains jurisdiction

11   to consider constitutional claims or questions of law.        See

12   8 U.S.C. §§ 1158(a)(2)(B), (3), 1252(a)(2)(D); Dong Zhong

13   Zheng v. Mukasey, 552 F.3d 277, 285 (2d Cir. 2009).     Ke

14   fails to raise such a reviewable argument, challenging only

15   the IJ’s factual findings that his and his aunt’s testimony

16   was inconsistent and the IJ’s exercise of discretion in

17   declining to credit his explanations for the

18   inconsistencies.    See Xiao Ji Chen v. U.S. Dep’t of Justice,

19   471 F.3d 315, 328-29 (2d Cir. 2006).    Accordingly, we lack

20   jurisdiction to review the agency’s pretermission of Ke’s

21   asylum application.     See 8 U.S.C. §§ 1158(a)(2)(B), (3),

22   1252(a)(2)(D).


                                     3
 1   II. Withholding of Removal and CAT Relief

 2       For applications such as Ke’s, governed by the

 3   amendments made to the Immigration and Nationality Act by

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

 5   totality of the circumstances, base a credibility finding on

 6   inconsistencies in his statements, and between those

 7   statements and other evidence or witness testimony, without

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

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

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

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

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

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

14   Lin, 534 F.3d at 167.   The IJ’s adverse credibility

15   determination is supported by substantial evidence.

16       In finding Ke not credible, the IJ reasonably relied on

17   inconsistencies: (1) between Ke’s and his aunt’s testimony

18   regarding (a) when they first met in the United States, and

19   (b) whether Ke told his aunt that he was Catholic and had

20   been persecuted in China; and (2) between Ke’s testimony

21   that he did not know how his other aunt was treated while in

22   the custody of Chinese police, and statements from that


                                   4
 1   aunt’s letter and his own asylum application that she had

 2   been mistreated in custody.    See Xiu Xia Lin, 534 F.3d at

 3   167.

 4          Although Ke argues that his aunt confused the question

 5   of when she first met Ke in the United States to ask only

 6   when, at any time, she met Ke after his arrival, his aunt

 7   was made aware of his testimony about the June 2008

 8   encounter but still testified that she did not recall such a

 9   meeting.    Also, contrary to Ke’s argument that he

10   misinterpreted the question regarding his aunt’s knowledge

11   about his persecution, the agency reasonably rejected that

12   explanation as he denied telling his aunt not just details

13   about his persecution, but basic information that he was

14   Catholic and had left China due to persecution.       See

15   8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d

16   77, 80-81 (2d Cir. 2005) (providing that the agency need not

17   credit an applicant’s explanations for inconsistent

18   testimony unless those explanations would compel a

19   reasonable fact-finder to do so).

20          The agency also reasonably declined to credit Ke’s

21   testimony that he had forgotten the information contained in

22   his aunt’s letter regarding her mistreatment given that they

23   were family members who were detained on the same day for
                                    5
 1   attending the same church service.     See 8 U.S.C.

 2   § 1158(b)(1)(B)(iii); Majidi, 430 F.3d at 80-81.      Equally

 3   unsatisfying is Ke’s argument, raised for the first time

 4   before us, that he misinterpreted the question about his

 5   aunt’s treatment “to mean him literally seeing the harm

 6   [she] suffered,” because the question was not whether Ke saw

 7   his aunt while she was detained and his explanation does not

 8   resolve why he mentioned her mistreatment in his written

 9   statement and not in his testimony.*

10       Given these inconsistencies, the totality of the

11   circumstances supports the agency’s adverse credibility

12   determination.   See Xiu Xia Lin, 534 F.3d at 167; Yanqin

13   Weng, 562 F.3d at 513.   Because the only evidence of a

14   threat to Ke’s life or freedom from persecution or torture

15   depended upon his credibility, the adverse credibility

16   determination in this case necessarily precludes success on

17   his claim for withholding of removal and CAT relief.      See

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

19   Yang, 426 F.3d at 523.



            *
            We do not reach Ke’s further argument that the IJ
       erred by declining to accept his revisions to the
       translation of his original asylum statement because the
       BIA did not affirm this ground of the IJ’s adverse
       credibility determination.
                                  6
1        For the foregoing reasons, the petition for review is

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

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

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

5    for a stay of removal in this petition is DISMISSED as moot.

6    Any pending request for oral argument in this petition is

7    DENIED in accordance with Federal Rule of Appellate

8    Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

 9                              FOR THE COURT:
10                              Catherine O’Hagan Wolfe, Clerk
11
12




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