         12-5015
         Xu v. Lynch
                                                                                       BIA
                                                                               A087 551 885


                            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 28th day of August, two thousand fifteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       SEN LIN XU,
14                Petitioner,
15
16                         v.                                   12-5015
17                                                              NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,*
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Guang Jun Gao, Flushing, New York.
24


                       *
                  Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Loretta E. Lynch is
             automatically substituted for former Attorney General
             Eric H. Holder, Jr., as the Respondent in this case.
 1   FOR RESPONDENT:           Stuart F. Delery, Assistant Attorney
 2                             General; Erica B. Miles, James A.
 3                             Hunolt, Senior Litigation Counsel,
 4                             Office of Immigration Litigation,
 5                             United States Department of Justice,
 6                             Washington, D.C.

 7       UPON DUE CONSIDERATION of this petition for review of a

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

 9   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

10   review is DENIED.

11       Sen Lin Xu, a native and citizen of China, seeks review

12   of a November 30, 2012, decision of the BIA affirming the

13   January 19, 2011, decision of Immigration Judge (“IJ”) Alan

14   A. Vomacka, denying Xu’s application for asylum, withholding

15   of removal, and relief under the Convention Against Torture

16   (“CAT”).     In re Sen Lin Xu, No. A087 551 885 (B.I.A. Nov.

17   30, 2012), aff’g No. A087 551 885 (Immig. Ct. N.Y. City Jan.

18   19, 2011).    We assume the parties’ familiarity with the

19   underlying facts and procedural history of this case.

20       Under the circumstances of this case, we have reviewed

21   the IJ’s decision as modified and supplemented by the BIA.

22   See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

23   522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271

24   (2d Cir. 2005).     The applicable standards of review are

25

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 1   well-established.    See 8 U.S.C. § 1252(b)(4)(B); see also

 2   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

 3       For asylum applications governed by the REAL ID Act,

 4   such as the application in this case, the agency may,

 5   “[c]onsidering the totality of the circumstances,” base a

 6   credibility finding on inconsistencies in the applicant’s

 7   statements and other record evidence, without regard to

 8   whether they go “to the heart of the applicant’s claim.”

 9   8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at

10   163-64.   Substantial evidence supports the agency’s adverse

11   credibility determination.

12       In finding Xu not credible, the agency reasonably

13   relied on inconsistencies between Xu’s testimony and other

14   record evidence.    First, regarding the length of his 1998

15   detention in Beijing, Xu testified that he was detained for

16   “two or three” days, but his application stated that he was

17   detained for ten days.   A second inconsistency involved the

18   date his wife was forced to undergo an abortion.     Xu

19   testified that the abortion occurred on April 11, 1997, a

20   letter from Xu’s sister stated that it occurred on April 14,

21   1997, and when confronted with this discrepancy, Xu

22   testified that the date provided by his sister was


                                    3
 1   incorrect.   As the BIA noted, however, in his brief on

 2   appeal, Xu conceded that he did not know the actual date,

 3   implying that his sister’s date was correct.   Third, Xu

 4   testified that he borrowed money from a friend for a 1998

 5   trip to Beijing, but the record contained a letter from Xu’s

 6   friend stating that he loaned money to Xu in 1997.    When

 7   confronted with this inconsistency, Xu conceded that his

 8   trip was in 1997, without explaining why other evidence

 9   supported the 1998 date.   Accordingly, Xu failed to provide

10   compelling explanations for these discrepancies.     See Majidi

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

12       Given these inconsistencies, which relate to Xu’s

13   allegations of past harm, the agency’s adverse credibility

14   determination is supported by substantial evidence, and is

15   dispositive of Xu’s claims for asylum, withholding of

16   removal, and CAT relief.   See Xiu Xia Lin, 534 F.3d at 167;

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

18       For the foregoing reasons, the petition for review is

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

20   removal that the Court previously granted in this petition

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

22   this petition is DISMISSED as moot.   Any pending request for


                                   4
1   oral argument in this petition is DENIED in accordance with

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

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7
8
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