         11-3915
         Pan v. Holder
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A087 462 992
                          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 18th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                ROSEMARY S. POOLER,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       XIAO SHI PAN,
14                Petitioner,
15
16                       v.                                     11-3915
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Gary J. Yerman, New York, N.Y.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Cindy S. Ferrier,
27                                     Assistant Director; Tracie N. Jones,
28                                     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       Xiao Shi Pan, a native and citizen of the People’s

 6   Republic of China, seeks review of a September 2, 2011,

 7   decision of the BIA affirming the March 4, 2010, decision of

 8   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 Xiao

11   Shi Pan, No. A087 462 992 (B.I.A. Sept. 2, 2011), aff’g No.

12   A087 462 992 (Immig. Ct. N.Y. City Mar. 4, 2010).   We assume

13   the parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we review the

16   decision of the IJ as modified and supplemented by the BIA.

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

18   The applicable standards of review are well-established.

19   See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.

20   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21       For applications such as Pan’s, governed by the REAL ID

22   Act of 2005, the agency may, considering the totality of the

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

                                  2
 1   “demeanor, candor, or responsiveness,” the plausibility of

 2   his account, and inconsistencies in his statements, without

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

 4   claim.”    See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v.

 5   Mukasey, 534 F.3d 162, 163-64, 165 (2d Cir. 2008) (per

 6   curiam).   We will “defer . . . to an IJ’s credibility

 7   determination unless, from the totality of the

 8   circumstances, it is plain that no reasonable fact-finder

 9   could make such” a ruling.    Xiu Xia Lin, 534 F.3d at 167.

10       The IJ reasonably based her credibility finding on

11   inconsistent testimony and omissions in Pan’s supporting

12   documentation, including the following: (1) Pan’s testimony

13   that his mother introduced him to her church in December

14   2006, though he later testified that he first attended

15   church in April 2007; (2) Pan’s testimony that he and his

16   family attended the same church and then “split” into

17   different churches, though he later testified that he had

18   never attended his mother’s or siblings’ church; (3) Pan’s

19   testimony that his parents paid a fine to release him from

20   jail though he later testified that his mother alone had

21   paid the fine and the fine receipt reflected that he himself

22   had paid the fine; (4) an omission in a letter from Pan’s


                                    3
 1   pastor, which did not mention Pan’s alleged arrest for

 2   distributing religious flyers in China; and (5) an omission

 3   in a letter from Pan’s father, which did not mention the

 4   alleged fine imposed against Pan.   See 8 U.S.C.

 5   §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d

 6   at 167.   The IJ was not required to credit Pan’s

 7   explanations for these inconsistencies.     See Majidi v.

 8   Gonzales, 430 F.3d 77, 81 (2d Cir. 2005).     In addition, the

 9   adverse credibility determination is further supported by

10   the IJ’s demeanor finding based on Pan’s non-responsive and

11   hesitant testimony.   See Li Hua Lin v. U.S. Dep’t of

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

13       Given the inconsistent testimony, omissions, and the

14   IJ’s demeanor finding, the totality of the circumstances

15   supports the agency’s adverse credibility.     See 8 U.S.C.

16   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.     Because

17   the only evidence of a threat to Pan’s life or freedom from

18   persecution or torture depended upon his credibility, the

19   adverse credibility determination in this case necessarily

20   precludes success on his claim for withholding of removal

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

22   Cir. 2006)


                                   4
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk




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