    10-3339-ag
    Jian v. Holder
                                                                                  BIA
                                                                           LaForest, IJ
                                                                          A094 924 069

                          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 20th day of August, two thousand twelve.
    PRESENT:
             ROSEMARY S. POOLER,
             PETER W. HALL,
             GERARD E. LYNCH,
                  Circuit Judges.
    _______________________________________

    PING SHI JIAN,
             Petitioner,

                     v.                                    10-3339-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:                Michael A.O. Brown, New York, New
                                   York.

    FOR RESPONDENT:                Tony West, Assistant Attorney
                                   General; John S. Hogan, Senior
                                   Litigation Counsel; Todd J. Cochran,
                                   Trial Attorney, Office of
                       Immigration Litigation, Civil
                       Division, United States Department
                       of Justice, Washington, D.C.

     UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.

     Ping Shi Jian, a native and citizen of China, seeks
review of a July 30, 2010, order of the BIA affirming the
October 27, 2008, decision of Immigration Judge (“IJ”)
Brigitte LaForest, which denied his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Ping Shi Jian, No. A094 924
069 (B.I.A. July 30, 2010), aff’g No. A094 924 069 (Immig.
Ct. N.Y. City Oct. 27, 2008). We assume the parties’
familiarity with the underlying facts and procedural history
of the case.

     Under the circumstances of this case, we have reviewed
the decision of the IJ 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); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009). For asylum applications, such as
Jian’s, governed by the REAL ID Act, the agency may,
considering the totality of the circumstances, base a
credibility finding on an applicant’s demeanor, the
plausibility of his 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).
We defer “to an IJ’s credibility determination unless, from
the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse
credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
167 (2d Cir. 2008).

     Contrary to Jian’s arguments, substantial evidence
supports the agency’s adverse credibility determination.
The agency reasonably relied on Jian’s omission of his 2006
beating in his credible fear interview and asylum
application in arriving at its decision. See Xiu Xia Lin,
534 F.3d at 166 n.3 (holding that for purposes of analyzing

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a credibility determination, “[a]n inconsistency and an
omission are . . . functionally equivalent”); Xu Duan Dong
v. Ashcroft, 406 F.3d 110, 111-12 (2d Cir. 2005) (concluding
that an asylum application that omits an essential factual
allegation can sustain an adverse credibility finding). The
IJ also reasonably declined to credit Jian’s explanation for
this omission because his alleged fear of discussing his
beating was inconsistent with his discussion of the beating
of his friend. See Majidi v. Gonzales, 430 F.3d 77, 80-81
(2d Cir. 2005) (discussing that an agency need not credit an
applicant’s explanations for inconsistent testimony unless
those explanations would compel a reasonable fact-finder to
do so). Finally, contrary to Jian’s assertion, the IJ’s
reliance on Jian’s omission of the May 2004 incident on
direct examination was reasonable. See Xiu Xia Lin, 534
F.3d at 166. Cf. Xian Tuan Ye v. DHS, 446 F.3d 289, 295-96
(2d Cir. 2006) (holding that an applicant’s failure to
include any reference to his alleged detention and beating
in his I-589 form is a “self-evident” inconsistency that the
agency may rely on without first soliciting an explanation).

     Because the REAL ID Act permits the agency to base a
credibility finding on inconsistencies such as these, Jian’s
argument that the record compels reversal is unavailing.
See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at
167. As Jian’s claims all were based on the same factual
predicate, the agency’s adverse credibility determination
was a proper basis for the denial of asylum, withholding of
removal, and CAT relief. See Paul v. Gonzales, 444 F.3d
148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 523 (2d Cir. 2005).

     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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