         12-761
         Li v. Holder
                                                                                       BIA
                                                                                  Rohan, IJ
                                                                               A089 908 328
                                                                               A089 908 329
                         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 4th day of October, two thousand twelve.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                     Circuit Judges.
11       _______________________________________
12
13       BING YAN LI, SHU QI WU,
14                Petitioners,
15
16                      v.                                      12-761
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Michael Brown, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Jennifer Paisner-
27                                     Williams, Senior Litigation Counsel;
28                                     Jesse M. Bless, Trial Attorney,
 1                          Office of Immigration Litigation,
 2                          United 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       Petitioners Bing Yan Li, and her husband Shu Qi Wu,

10   natives and citizens of the People’s Republic of China, seek

11   review of a February 2, 2012, decision of the BIA affirming

12   the May 14, 2010, decision of Immigration Judge (“IJ”)

13   Patricia A. Rohan, which denied their application for

14   withholding of removal and relief under the Convention

15   Against Torture (“CAT”).   In re Bing Yan Li & Shu Qi Wu,

16   Nos. A089 908 328/329 (B.I.A. Feb. 2, 2012), aff’g Nos. A089

17   908 328/329 (Immig. Ct. N.Y. City May 14, 2010).     We assume

18   the parties’ familiarity with the underlying facts and

19   procedural history in this case.

20       Under the circumstances of this case, we have reviewed

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

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

23   applicable standards of review are well-established.     See

24   8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

25   562 F.3d 510, 513 (2d Cir. 2009).   For applications such as

                                   2
 1   the petitioners’, governed by the amendments made to the

 2   Immigration and Nationality Act by the REAL ID Act of 2005,

 3   the agency may, “[c]onsidering the totality of the

 4   circumstances, . . . base a credibility determination on the

 5   demeanor, candor, or responsiveness of the applicant,” or

 6   any inconsistency or omission in an applicant’s statements,

 7   “without regard to whether the inconsistency, inaccuracy, or

 8   falsehood goes to the heart of the applicant’s claim.”     See

 9   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534

10   F.3d 162, 167 (2d Cir. 2008) (per curiam).

11       The petitioners challenge the agency’s denial of

12   withholding of removal, in which the agency discredited

13   their testimony based on their hesitant or non-responsive

14   demeanor and contradictions regarding the time,

15   circumstances, and location of their practice of Falun Gong.

16   The petitioners do not dispute the IJ’s demeanor finding,

17   but contend that the agency failed to credit their

18   explanations – that Li was nervous and Wu was “not in a

19   right state of mind.”   However, the petitioners’ argument

20   misapprehends the “particular deference” afforded to an IJ’s

21   assessment of demeanor, Majidi v. Gonzales, 430 F.3d 77, 80-

22   81 (2d Cir. 2005), because demeanor is “paradigmatically the


                                   3
 1   sort of evidence that a fact-finder is best positioned to

 2   evaluate,” Li Zu Guan v. INS, 453 F.3d 129, 139-40 (2d Cir.

 3   2006) (citing Jin Chen v. U.S. Dep’t of Justice, 426 F.3d

 4   104, 113 (2d Cir. 2005)).   Even assuming the petitioners’

 5   explanations for their demeanor were plausible, where the

 6   demeanor findings were not based on a misstatement of the

 7   record, but rather were “tethered to the evidentiary

 8   record,” Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir.

 9   2007), the petitioners “must do more than offer a plausible

10   explanation ... to secure relief; [they] must demonstrate

11   that a reasonable fact-finder would be compelled to credit

12   [their] testimony,” Majidi, 430 F.3d at 80 (internal

13   quotation marks and citations omitted).   Accordingly, the

14   petitioners’ explanations for their poor demeanor are

15   inadequate to overcome the “particular deference” due to

16   those findings.   Id.

17       The petitioners also contend that the IJ failed to

18   consider the totality of the circumstances regarding their

19   explanations for their discrepant testimony.   During the

20   merits hearing, Wu testified that he and Li practiced Falun

21   Gong together in parks, contradicting Li’s testimony, but

22   later testified that Li did not practice Falun Gong in


                                   4
 1   parks.   Wu explained his inconsistent testimony by stating

 2   that he “probably forgot [he] said that.”    However, this

 3   explanation was inadequate to compel a reasonable fact-

 4   finder to credit his testimony because it does not explain

 5   his inconsistent statements if he was testifying truthfully.

 6   See Majidi, 430 F.3d at 80-81.    In their brief, the

 7   petitioners also explain Wu’s further inconsistent testimony

 8   – that he last practiced Falun Gong at 2:00 in the

 9   afternoon, whereas Li testified it was between 5:00 or 6:00

10   in the evening – by asserting that Wu’s time was only an

11   estimation.   Similarly, this explanation is inadequate to

12   compel a contrary conclusion because it fails to address

13   other inconsistent aspects of his testimony – the

14   discrepancy between his and Li’s testimony regarding what

15   their children were doing while they were practicing Falun

16   Gong – and is otherwise insufficiently compelling to require

17   a reasonable fact-finder to credit it.    Id.

18       Accordingly, the agency properly grounded its adverse

19   credibility determination on those inconsistencies.     See Xiu

20   Xia Lin, 534 F.3d at 167 (the agency “may rely on any

21   inconsistency or omission in making an adverse credibility

22   determination as long as the ‘totality of the circumstances’

23   establishes the asylum applicant is not credible”) (emphasis
                                   5
 1   in original) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)); see

 2   also 8 U.S.C. § 1252(b)(4)(B) (providing that

 3   “administrative findings of fact are conclusive unless any

 4   reasonable adjudicator would be compelled to conclude to the

 5   contrary”).   Given these inconsistency and demeanor

 6   findings, the totality of the circumstances supports the

 7   agency’s adverse credibility determination, 8 U.S.C.

 8   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167, which is

 9   dispositive of petitioners’ application for withholding of

10   removal, see Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

11   2006).

12       For the foregoing reasons, the petition for review is

13   DENIED.

14                               FOR THE COURT:
15                               Catherine O’Hagan Wolfe, Clerk




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