     15-465
     Xue v. Lynch
                                                                                       BIA
                                                                                Montante, IJ
                                                                               A077 977 252
                         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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   28th day of April, two thousand sixteen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            RICHARD C. WESLEY,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   XING DI XUE,
14            Petitioner,
15
16                  v.                                               15-465
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Lee B. Ratner, Law Offices of Michael
24                                      Brown, PC, New York, New York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Janice
28                                       K. Redfern, Senior Litigation
29                                       Counsel; Christina Parascandola,
30                                       Trial Attorney, Office of
1                               Immigration Litigation, United
2                               States Department of Justice,
3                               Washington, D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

7    ORDERED, ADJUDGED, AND DECREED that the petition for review is

8    DENIED.

9        Petitioner Xing Di Xue, a native and citizen of the People’s

10   Republic of China, seeks review of a February 2, 2015, decision

11   of the BIA affirming a September 4, 2013, decision of an

12   Immigration Judge (“IJ”) denying Xue’s application for asylum,

13   withholding of removal, and relief under the Convention Against

14   Torture (“CAT”).   In re Xing Di Xue, No. A077 977 252 (B.I.A.

15   Feb. 2, 2015), aff’g No. A077 977 252 (Immig. Ct. Buffalo Sept.

16   4, 2013).    We assume the parties’ familiarity with the

17   underlying facts and procedural history in this case.

18       Under the circumstances of this case, we have reviewed the

19   IJ’s decision as modified by the BIA.   See Xue Hong Yang v. U.S.

20   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).          The

21   applicable standards of review are well established.       See 8

22   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

23   (2d Cir. 2009 ); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

24   (2d Cir. 2008).


                                    2
1        Xue’s sole challenge to the agency’s adverse credibility

2    determination is that the IJ erred in relying on inconsistent

3    statements in his initial removal proceeding to find him not

4    credible in his remanded proceeding because the factual bases

5    for his asylum claims differed between the two proceedings.   He

6    contends that his initial hearing focused on his wife’s forced

7    sterilization and his remanded hearing focused on his unpaid

8    family planning fine.    Xue’s argument is without merit.

9        At his initial merits hearing, Xue asserted eligibility for

10   relief based on both his wife’s alleged forced sterilization

11   and their fines for having violated the family planning policy.

12   During his merits hearing on remand in 2010, Xue testified that

13   family planning officials continued to seek payment of the

14   unpaid fines levied in 1992.   Given that the claims presented

15   at both hearings were based on the same factual predicate, the

16   agency did not err in relying on the inconsistency findings from

17   Xue’s first hearing to find him not credible at the conclusion

18   of his second hearing.    See Paul v. Gonzales, 444 F.3d 148,

19   154-57 (2d Cir. 2006).

20       Xue does not challenge the specific inconsistency findings

21   in his brief.    Those findings, which are supported by the

22   record, thus stand as a valid basis for the adverse credibility


                                    3
1    determination.    See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

2    Lin, 534 F.3d at 165-66.    That determination is dispositive of

3    Xue’s claims for asylum, withholding of removal, and CAT relief.

4    See Paul, 444 F.3d at 156-57.

5        We may not consider Xue’s due process claim because he did

6    not raise it on appeal to the BIA.      See Severino v. Mukasey,

7    549 F.3d 79, 83 (2d Cir. 2008).

8        For the foregoing reasons, the petition for review is

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

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

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

12   is DISMISSED as moot.      Any pending request for oral argument

13   in this petition is DENIED in accordance with Federal Rule of

14   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

15   34.1(b).

16                                  FOR THE COURT:
17                                  Catherine O=Hagan Wolfe, Clerk
18




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