    11-5182
    Lian v. Holder
                                                                                  BIA
                                                                             Nelson, IJ
                                                                          A094 932 798
                      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 Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 1st day of October, two thousand twelve.

    PRESENT:
             JOSÉ A. CABRANES,
             PETER W. HALL,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _______________________________________

    FU DI LIAN,
             Petitioner,

                     v.                                    11-5182
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Oleh R. Tustaniwsky, Brooklyn, New
                                  York.

    FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
                                  Attorney General; Jennifer J.
                                  Keeney, Senior Litigation Counsel;
                                  Joseph A. O’Connell, 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.

     Fu Di Lian, a native and citizen of the People’s
Republic of China, seeks review of a November 29, 2011,
decision of the BIA affirming the June 4, 2009, decision of
Immigration Judge (“IJ”) Barbara A. Nelson, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Fu Di
Lian, No. A094 932 798 (B.I.A. Nov. 29, 2011), aff’g No.
A094 932 798 (Immig. Ct. N.Y. City June 4, 2009). 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 IJ’s decision 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). For asylum applications
such as Lian’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 inherent
plausibility of an applicant’s account, or inconsistencies
in his statements, without regard to whether they go “to the
heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
167 (2d Cir. 2008) (per curiam).

     Lian contends that his inconsistent testimony about the
date his wife was allegedly subject to forcible insertion of
an intrauterine device – stating first it was in 2005, and
later that it was in 1995 – can be explained by translation
issues, his lack of education, and memory issues because the
matter did not affect him directly. As noted by the BIA,
however, Lian’s mistranslation argument lacks merit because
the administrative record indicates that he understood his
interpreter, and a reasonable fact-finder would not be
compelled to credit the explanations he offers for the first
time before this Court. See Majidi v. Gonzales, 430 F.3d
77, 80-81 (2d Cir. 2005). Lian also challenges the agency’s

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finding that there was inconsistency in the evidence he
offered – the record evidence indicating his first son was
born at home, whereas he testified that his first son was
born in a hospital in the countryside – by explaining that
his son’s birth certificate is unreliable because it was a
replacement. A reasonable fact-finder would not be
compelled to credit this explanation, id., however, and the
agency reasonably based its adverse credibility
determination, in part, on Lian’s inconsistent testimony.
See Xiu Xia Lin, 534 F.3d at 167 (finding the agency “may
rely on any inconsistency or omission in making an adverse
credibility determination” as long as the totality of the
circumstances establishes the applicant is incredible)
(internal quotation marks omitted) (emphasis in original).

     Lian also faults the agency for failing to question him
about the material omissions in his asylum application – his
testimony that his second son was born in a government
hospital, causing a doctor to be punished, even though he
and his wife were “hiding” from family planning officials.
The agency, however, was not required to put Lian on notice
for these “dramatic” omissions. Majidi, 430 F.3d at 81; Xiu
Xia Lin, 534 F.3d at 166 n.3 (finding inconsistencies and
omissions to be “functionally equivalent”). Finally, Lian
argues that his testimony about his uneventful departure
from China was not implausible despite (1) his testimony
that officials were searching for him because he violated
the family planning policies and (2) his admission that he
departed using a government-issued passport and visa
containing his photograph, issued in his own name. He
asserts that the smuggler evaded the government by obtaining
his passport and visa and facilitated his departure from
Beijing. Even if Lian’s explanation is deemed plausible,
that explanation is insufficient to compel a contrary
conclusion, 8 U.S.C. § 1252(b)(4)(B), because “[i]t is not
this Court’s task to explain away the improbabilities in
petitioner’s testimony.” Wensheng Yan v. Mukasey, 509 F.3d
63, 68 (2d Cir. 2007) (per curiam) (internal quotation marks
omitted); Ying Li v. Bureau of Citizenship and Immigration
Services, 529 F.3d 79, 82-83 (2d Cir. 2008).

     Because the totality of the circumstances supports the
agency’s adverse credibility determination, we defer to that
finding. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

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534 F.3d at 167. Furthermore, because the only evidence of
a threat to Lian’s life or freedom hinged on his
credibility, the adverse credibility determination in this
case necessarily precludes success on his claims for asylum,
withholding of removal, and CAT relief. See Paul v.
Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the petitioner’s
motion for a stay of removal in this petition is denied as
moot. Lian’s 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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