    11-3538
    Ye v. Holder
                                                                                  BIA
                                                                             Cheng, IJ
                                                                          A087 550 580
                    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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 9th day of September, two thousand thirteen.

    PRESENT:
             JON O. NEWMAN,
             ROSEMARY S. POOLER,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.
    _____________________________________

    PENG CHENG YE,
             Petitioner,

                   v.                                      11-3538
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Gang Zhou, New York, NY.

    FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
                                  Attorney General; Douglas E.
                                  Ginsburg, Assistant Director; Julie
                                  S. Saltman, Trial Attorney, Office
                                  of Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Peng Cheng Ye, a native and citizen of the People’s

Republic of China, seeks review of an August 5, 2011,

decision of the BIA affirming the May 4, 2010, decision of

Immigration Judge (“IJ”) Mary Cheng, which pretermitted his

application for asylum and denied his application for

withholding of removal and relief under the Convention

Against Torture (“CAT”).   In re Peng Cheng Ye, No. A087 550

580 (B.I.A. Aug. 5, 2011), aff’g No. A087 550 580 (Immig.

Ct. N.Y. City May 4, 2010).   We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    Under the circumstances of this case, we have reviewed

the decision of the IJ as supplemented by the BIA.     See Yan

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

applicable standards of review are well-established.     See

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

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

    As a preliminary matter, Ye concedes that this Court

lacks jurisdiction to review the pretermission of his asylum

                              2
application unless he raises a colorable constitutional

claim or question of law.   He has failed to do so.

    Ye argues that the IJ erred by applying a higher burden

than the required “clear and convincing evidence” standard

in determining whether he had demonstrated that he had

timely filed his asylum application within one year after

his entry to the United States.   However, the IJ both

explicitly stated that she applied the “clear and

convincing” standard, and, in practical terms, did not

require evidence in excess of that burden.    Instead, the IJ

found that Ye’s evidence was insufficient as it was both

internally inconsistent and inconsistent with his witness’s

testimony and his medical documentation.     See 8 U.S.C.

§ 1158(a)(2)(B) (requiring that an alien establish by clear

and convincing evidence the timely filing of his asylum

application).   Because there is no indication that the IJ

applied an overly stringent standard, Ye has not asserted a

colorable constitutional claim or question of law regarding

the pretermission of asylum and we consider only the

agency’s denial of withholding of removal and CAT relief.

See 8 U.S.C. §§ 1158(a)(2)(B), (3), 1252(a)(2)(D).




                              3
    For applications such as Ye’s, governed by the

amendments made to the Immigration and Nationality Act by

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

totality of the circumstances, base a credibility finding on

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

plausibility of his account, and inconsistencies in his

statements, without regard to whether they go “to the heart

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

§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin v.

Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).   We will “defer

to an IJ’s credibility determination unless, from the

totality of the circumstances, it is plain that no

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

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

determination is supported by substantial evidence.

    The IJ reasonably based her credibility finding on

inconsistent testimony, including the following: (1) Ye’s

changing testimony regarding (a) whether his wife was at

home or at the family planning office on the day she

underwent an IUD insertion, (b) whether he or his wife had

paid the fine he incurred for fleeing China in 1999, and

(c) whether his wife had worked in a factory; (2) Ye’s


                              4
testimony that he lived at the address listed in his

application since 1975, when the application listed him

living at the address only since 2000; (3) Ye’s testimony

that he had worked as a truck driver in China for one month,

though his application listed that employment as lasting

four years; and (4) Ye’s testimony that he had visited the

Fuzhou Economy and Technology Hospital in April 2009, though

his medical documents identified the institution as Mawei

Hospital.   See 8 U.S.C. §§ 1158(b)(1)(B)(iii),

1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167 (providing that

an IJ may support an adverse credibility determination with

“any inconsistency or omission”).    The IJ was not required

to credit Ye’s explanations for these inconsistencies.       See

Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).1      In

addition, the adverse credibility determination is further

supported by the IJ’s demeanor finding based on Ye’s non-

responsive and vague testimony.     See Li Hua Lin v. U.S.

Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).


      1
        We do not rely on the trivial inconsistencies
  between Ye’s testimony that Chinese family planning
  officials forced his wife to have an abortion on May 18,
  1998, and his wife’s letter, stating, several years after
  the fact, that the date was May 27, 1998, or between Ye’s
  testimony that he called his cousin twice on April 20,
  2009, and his cousin’s testimony that he called once on
  that date.
                             5
    Given these inconsistencies and the negative demeanor

finding, the totality of the circumstances supports the

agency’s adverse credibility determination.    See 8 U.S.C.

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

the only evidence of a threat to Ye’s life or freedom

depended upon his credibility, the adverse credibility

determination in this case necessarily precludes success on

his claims for both withholding of removal and CAT relief.

See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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

this petition is DISMISSED as moot.    Any pending request for

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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