    15-2261
    Li v. Lynch

                                                                                         BIA
                                                                                   Poczter, IJ
                                                                            A205 050 606/607
                       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.

         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 December, two thousand sixteen.

    PRESENT:
             JON O. NEWMAN,
             ROSEMARY S. POOLER,
             RICHARD C. WESLEY,
                  Circuit Judges.
    _____________________________________

    XIAOHONG LI, WEIJUN DU, AKA WEI
    JIAN DU,
             Petitioners,

                  v.                                                 15-2261
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONERS:                     Jim Li, Flushing, N.Y.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Kiley
                                         Kane, Senior Litigation Counsel;
                                         Robert Michael Stalzer, Trial
                                         Attorney; 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.

     Petitioners Xiaohong Li and Weijun Du, natives and citizens

of the People’s Republic of China, seek review of a July 2, 2015,

decision of the BIA affirming a March 14, 2013, decision of an

Immigration Judge (“IJ”) ordering their removal and denying

Li’s application for asylum, withholding of removal, and relief

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

Li, Weijun Du, No. A205 050 606/607 (B.I.A. July 2, 2015), aff’g

No. A205 050 606/607 (Immig. Ct. N.Y. City      Mar. 14, 2013).    We

assume the parties’ familiarity with the underlying facts and

procedural history in this case.

     Under the circumstances of this case, we have reviewed both

the IJ’s and BIA’s decisions.        Yun-Zui Guan v. Gonzales, 432

F.3d 391, 394 (2d Cir. 2005).         The applicable standards of

review are well established.    See 8 U.S.C. § 1252(b)(4)(B); Xiu

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

     For asylum applications like Li’s, governed by the REAL ID

Act, the agency may, “[c]onsidering the totality of the

circumstances,”   base    a   negative     credibility   finding   on

inconsistencies   or     omissions    in   an   asylum   applicant’s


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statements,     her    witness’s    statements,        and    other    record

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

at 163-64.    “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, 534 F.3d at 167.         The record

supports the agency’s determination that Li was not credible.

      The agency reasonably relied on an inconsistency between

Li’s testimony and the record evidence regarding whether her

husband and brother were beaten in detention, and on an omission

regarding the extent of her brother-in-law’s injuries.                See Xia

Xia Lin, 534 F.3d at 166-67 & n.3.        Li testified that her husband

and   younger   brother     were    not       physically     mistreated    in

detention, while her asylum application reported that they were

“severely beaten.”        And Li’s husband Du testified that Li’s

brother-in-law sustained a broken leg from police beatings,

while Li’s testimony, asylum application, and a letter from her

brother-in-law omitted this allegation.                    The IJ was not

compelled to credit Li’s explanations for these discrepancies.

See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A

petitioner must do more than offer a plausible explanation for

his   inconsistent      statements       to   secure   relief;      he   must

demonstrate that a reasonable fact-finder would be compelled


                                     3
to credit his testimony.” (quoting Zhou Yun Zhang v. U.S. INS,

386 F.3d 66, 76 (2d Cir. 2004))).

    The agency also did not err in concluding that Li’s

corroborating evidence was insufficient to rehabilitate her

credibility    because   it   was   itself    inconsistent    with   her

testimony.     See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

Cir. 2007) (An applicant’s failure to corroborate his . . .

testimony may bear on credibility, because the absence of

corroboration    makes   an   applicant      unable   to   rehabilitate

testimony that has already been called into question.”).             Li’s

argument that the agency should have allowed her to submit

additional corroborating evidence is not properly before us,

as Li did not raise the argument before the BIA.           See Lin Zhong

v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007).           And

the argument is meritless: the agency was not required to give

Li an opportunity to supplement the record with additional

corroborating evidence intended to rehabilitate her previous

omission.     It was Li’s burden to provide such evidence in the

first instance.     See Chuilu Liu v. Holder, 575 F.3d 193, 198

(2d Cir. 2006) (holding that alien has burden to produce

“evidence without prompting from the IJ”).

    Given the inconsistent testimony and omission regarding

the sole incident of persecution on which Li’s application was


                                    4
based, the totality of the circumstances supports the agency’s

adverse credibility determination.    See Xiu Xia Lin, 534 F.3d

at 165-66; Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,

295-96 (2d Cir. 2006).   The adverse credibility determination

is dispositive of asylum, withholding of removal, and CAT relief

because all three claims are based on the same factual

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

2006).

    For the foregoing reasons, the petition for review is

DENIED.

                             FOR THE COURT:
                             Catherine O=Hagan Wolfe, Clerk




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