         11-1701-ag                                                                    BIA
         Luo v. Holder                                                            Nelson, IJ
                                                                               A094 925 193



                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 5th day of November, two thousand twelve.
 5
 6       PRESENT:
 7                RICHARD C. WESLEY,
 8                DENNY CHIN,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _______________________________________
12
13       XIAO XIA LUO,
14                Petitioner,
15
16                       v.                                     11-1701-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Eric Zheng, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Douglas E. Ginsburg,
27                                     Assistant Director, Judith R.
28                                     O’Sullivan; Trial Attorney, Office
 1                             of 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       Xiao Xia Luo, a native and citizen of the People’s

10   Republic of China, seeks review of a decision of the BIA

11   affirming the Immigration Judge’s (“IJ”) denial of her

12   application for asylum, withholding of removal, and relief

13   under the Convention Against Torture (“CAT”).     In re Xiao

14   Xia Luo, No. A094 925 193 (B.I.A. Apr. 13, 2011), aff’g No.

15   A094 925 193 (Immig. Ct. N.Y. City, Mar. 18, 2009).     We

16   assume the parties’ familiarity with the underlying facts

17   and procedural history in this case.

18       Under the circumstances of this case, we have reviewed

19   both the IJ’s and the BIA’s opinions “for the sake of

20   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

21   2008).   The applicable standards of review are well-

22   established.     See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia

23   Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).     For

24   asylum applications, like Luo’s, governed by the REAL ID

25   Act, the agency may base a credibility determination on the

                                     2
 1   applicant’s “demeanor, candor, or responsiveness,” the

 2   plausibility of his or her account, and inconsistencies in

 3   his or her statements, without regard to whether they go “to

 4   the heart of the applicant’s claim.”    See 8 U.S.C.

 5   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.     This

 6   Court “defer[s] . . . to an IJ’s credibility determination

 7   unless, from the totality of the circumstances, it is plain

 8   that no reasonable fact-finder could make such an adverse

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

10       Substantial evidence supports the agency’s adverse

11   credibility determination, as it was properly based on

12   inconsistencies between Luo’s airport interview and her

13   asylum application and hearing testimony, and Luo’s

14   “hesitant and nonresponsive” testimony.   Luo argues that her

15   airport interview was unreliable.   Where discrepancies arise

16   from an applicant’s statements in an airport interview, we

17   examine the record of the interview to ensure that “it

18   represents a sufficiently accurate record of the alien’s

19   statements to merit consideration in determining whether the

20   alien is credible.”    Ramsameachire v. Ashcroft, 357 F.3d

21   169, 179 (2d Cir. 2004).

22



                                    3
 1          Here, the agency reasonably found the record of Luo’s

 2   airport interview sufficiently reliable because: (1) it

 3   appears to be a verbatim transcript; (2) the questions posed

 4   to Luo at the interview were open-ended and designed to

 5   determine whether she had suffered harm or feared returning

 6   to China; (3) there were no indications at Luo’s airport

 7   interview that she feared the interviewing officers, and Luo

 8   did not object to the introduction of the record of her

 9   interview into evidence before the IJ; and (4) Luo was

10   provided an interpreter in Mandarin, her preferred language,

11   and did not object in any way to the translation provided to

12   her.    See id. at 180.

13           Having concluded that the airport interview was a

14   reliable record of Luo’s statement, the agency reasonably

15   based its adverse credibility finding on Luo’s failure to

16   mention in her airport interview her later allegation that

17   she was arrested, detained, and beaten by Chinese police who

18   sought information about her parents’ whereabouts in

19   connection with their Falun Gong practice.    See Xiu Xia Lin,

20   534 F.3d at 166 & n.3.    The agency was not required to

21   credit Luo’s explanation for this omission, that she was

22   afraid of her interviewer and nervous, because there were no


                                    4
 1   indications in the record that she feared her interviewers,

 2   she answered all of their questions, and she twice stated

 3   during the interview that she came to the United States to

 4   work.    See Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir.

 5   2005).

 6       Moreover, it was well within the agency’s discretion to

 7   decline to afford Luo’s parents’ and cousin’s supporting

 8   affidavits probative value due to evidentiary concerns.      See

 9   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d

10   Cir. 2005).   Finally, the agency reasonably relied on Luo’s

11   “hesitant and nonresponsive” testimony in finding her not

12   credible because Luo repeatedly declined to directly answer

13   the government’s questions concerning her brother, who

14   remains in China.    See Dong Gao v. B.I.A., 482 F.3d 122,

15   126-27 (2d Cir. 2007).   Ultimately, the agency’s adverse

16   credibility determination was supported by substantial

17   evidence and thus precludes success on Luo’s claim for

18   withholding of removal and CAT relief based on the same

19   factual predicate.    See Paul v. Gonzales, 444 F.3d 148, 156

20   (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426

21   F.3d 520, 523 (2d Cir. 2005).       Because the agency’s

22   credibility finding is dispositive, we need not reach its

23   alternative nexus finding.
                                     5
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

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




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