     16-2884
     Ou v. Sessions
                                                                                   BIA
                                                                             Loprest, IJ
                                                                           A201 128 205

                           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 TO 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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 1st day of May, two thousand eighteen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            RAYMOND J. LOHIER, JR.,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   QIJUN OU,
14                    Petitioner,
15
16                    v.                                         16-2884
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Gerald Karikari, New York, NY.
24
25   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
26                                     Attorney General; Carl McIntyre,
27                                     Assistant Director; Brooke M.
28                                     Maurer, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, DC.
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        Petitioner Qijun Ou, a native and citizen of the People’s

6    Republic of China, seeks review of a July 29, 2016, decision

7    of the BIA affirming an April 17, 2015, decision of an

8    Immigration Judge (“IJ”) denying Ou’s application for asylum,

9    withholding   of   removal,   and       relief   under   the   Convention

10   Against Torture (“CAT”).       In re Qijun Ou, No. A 201 128 205

11   (B.I.A. July 29, 2016), aff’g No. A 201 128 205 (Immig. Ct.

12   N.Y. C. Apr. 17, 2015).       We assume the parties’ familiarity

13   with the underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   both the IJ’s and BIA’s decisions.           Yun-Zui Guan v.

16   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable

17   standards of review are well established.            See 8 U.S.C.

18   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

19   66 (2d Cir. 2008)(per curiam).

20       The agency may, “[c]onsidering the totality of the

21   circumstances,” base a credibility finding on an asylum

22   applicant’s “demeanor, candor, or responsiveness” and any

23   inconsistencies and omissions in his testimony,


                                         2
1    application, and documentary evidence.    8 U.S.C.

2    § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at

3    163-64, 167.   “We defer . . . to an IJ’s credibility

4    determination unless . . . it is plain that no reasonable

5    fact-finder could make such an adverse credibility ruling.”

6    Xiu Xia Lin, 534 F.3d at 167; see 8 U.S.C. § 1252(b)(4)(B).

7    Here, substantial evidence supports the agency’s

8    determination that Ou was not credible.

9        The agency reasonably relied on discrepancies regarding

10   the length of Ou’s detention and his medical treatment.

11   8 U.S.C. § 1158(b)(1)(B)(iii).    Ou’s testimony that he was

12   detained for three days contradicted his testimony that he

13   was detained from December 25 until December 31 (a total of

14   six days).   The agency was not required to accept Ou’s

15   explanation that his medical condition resolved this

16   inconsistency given that his medical records reflected only

17   that he was diagnosed with a respiratory infection, “fever

18   [,] and cough,” and did not mention that Ou was

19   unconscious.   See Xiu Xia Lin, 534 F.3d at 166-167, 166 n.3

20   (noting that “an inconsistency and an omission

21   are . . . functionally equivalent” for credibility

22   purposes); Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

23   2005) (“A petitioner must do more than offer a plausible


                                   3
1    explanation for his inconsistent statements to secure

2    relief; he must demonstrate that a reasonable fact-finder

3    would be compelled to credit his testimony.” (quotation

4    marks omitted)).

5        Ou now argues that the English translations of his

6    medical records are incomplete and unreliable.            But Ou did

7    not raise this issue before the BIA, and it is therefore

8    unexhausted.     Foster v. U.S. INS, 376 F.3d 75, 78 (2d Cir.

9    2004) (requiring the “petitioner to raise issues to the BIA

10   in order to preserve them for judicial review”).           Moreover,

11   because Ou has the burden of proof and and he introduced the

12   medical records and translations into evidence, it was his

13   responsibility    to   ensure   that   his   own   translations   were

14   accurate.   See 8 U.S.C. § 1158(b)(1)(B)(i).

15       As the Government argues, Ou has waived any further

16   review because he does not challenge any other bases for

17   the agency’s adverse credibility ruling.           See Shunfu Li v.

18   Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).          Moreover, our

19   review of the record reveals no basis for challenging the

20   IJ’s negative demeanor finding, given the lack of detail

21   and responsiveness in Ou’s testimony.         Li Hua Lin v. U.S.

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

23   particular deference to credibility findings based on


                                       4
1    applicant’s demeanor).

2        Given the multiple discrepancies, only two of which Ou

3    challenges, as well as the negative demeanor finding, the

4    totality of the circumstances supports the agency’s ruling.

5    Xiu Xia Lin, 534 F.3d at 166-67.   Contrary to Ou’s

6    position, because asylum, withholding of removal, and CAT

7    relief were all based on the same factual predicate, the

8    adverse credibility determination is dispositive.     Paul v.

9    Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006); see also

10   Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).

11       For the foregoing reasons, the petition for review is

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

13   that the Court previously granted in this petition is VACATED,

14   and any pending motion for a stay of removal in this petition

15   is DISMISSED as moot.

16                      FOR THE COURT:
17                      Catherine O’Hagan Wolfe, Clerk of Court




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