    13-1571
    Ye v. Holder
                                                                                  BIA
                                                                               Hom, IJ
                                                                          A200 931 709
                     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
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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 14th day of April, two thousand fourteen.

    PRESENT:
             PETER W. HALL,
             GERARD E. LYNCH,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    YUEQI YE,
                   Petitioner,

                   v.                                      13-1571
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Thomas V. Massucci, New York, New
                                  York.

    FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
                                  General; David V. Bernal, Assistant
                                  Director; Lance L. Jolley, Trial
                                  Attorney, Civil Division, 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.

    Petitioner Yueqi Ye, a native and citizen of the

People’s Republic of China, seeks review of a March 29, 2013

decision of the BIA affirming the October 13, 2011, decision

of an Immigration Judge (“IJ”), which denied Ye’s

application for asylum, withholding of removal and relief

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

Ye, No. A200 931 709 (B.I.A. Mar. 29, 2013), aff’g No. A200

931 709 (Immig. Ct. N.Y. City Oct. 13, 2011).    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 agency’s

findings of fact will be affirmed if they are supported by

substantial evidence, and may be overturned only if “any

reasonable adjudicator would be compelled to conclude to the

contrary.”   8 U.S.C. 1252(b)(4)(B); see also Yanqin Weng v.

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


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    As this application is governed by the REAL ID Act of

2005, the agency may base a credibility finding on the

totality of the circumstances, including the asylum

applicant’s demeanor, the plausibility of her account, and

inconsistencies in her statements, without regard as to

whether these factors go “to the heart of the applicant’s

claim.”   8 U.S.C. § 1158(b)(1)(B)(iii).   By this standard,

the agency’s adverse credibility determination is supported

by substantial evidence.   The IJ relied on Ye’s demeanor and

discrepancies in her testimony regarding the timing of

significant events relevant to her alleged persecution.     As

the IJ reasonably declined to credit Ye’s explanations for

these discrepancies, we defer to the agency’s findings.     See

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

    Having reasonably found that Ye failed to establish

eligibility for asylum on credibility grounds, the agency

did not err in denying withholding of removal and relief

under the CAT, as these claims shared the same factual

predicate.   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

520, 523 (2d Cir. 2005).




                              3
    Ye argues that the agency did not properly consider her

mental state and poor memory in its credibility finding, and

asserts that the IJ breached his duty to inquire into her

mental competency during the merits hearing.       However, Ye’s

claim regarding her competency has evolved at each stage of

review.   Before the IJ, Ye attributed her testimonial

discrepancies to poor memory and limited education, an

explanation the IJ considered and reasonably rejected.

Before the BIA, Ye for the first time alleged mental

incompetency to explain her testimonial defects, and

submitted a psychiatric evaluation indicating depression.

Before us, Ye alleges a more pervasive and debilitating

mental incompetency, which she states the agency failed to

consider and which would require the agency to reconsider

its credibility finding.

    Claims raised before us, but not before the agency, are

unexhausted, and we may not consider them.       See Lin Zhong v.

U. S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2006)

(“We may consider only those issues that formed the basis

for [the agency] decision.”).       Thus, we are limited to

considering the claim of mental incompetency only as raised

before the agency.   Since the argument and supporting

evidence regarding Ye’s mental incompetence was offered for

                                4
the first time before the BIA, and the BIA does not engage

in factfinding in its review of IJ decisions, 8 C.F.R. §

1003.1(d)(3)(iv), the BIA did not err in declining to assess

Ye’s mental competency in the first instance.   Nor did the

BIA err in declining to remand the application to the IJ to

consider the mental incompetency claim.   As the BIA noted,

the gravamen of Ye’s argument to the BIA – that her

testimonial inconsistencies should be excused due to her

poor memory – had already been thoroughly considered by the

IJ, and Ye’s request for remand included no evidence that

was unavailable to her during the initial proceedings before

the IJ.   See 8 CFR § 1003.2(c)(1).

    For the foregoing reasons, the petition for review is

DENIED.   Ye’s request for oral argument is DENIED in

accordance with Fed. R. App. P. 34(a)(2) and 2d Cir. Local

R. 34.1(b).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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