         13-2094
         Xue v. Holder
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A200 923 597
                          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 27th day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       SHAN HUI XUE,
14                Petitioner,
15
16                       v.                                     13-2094
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Adedayo O. Idowu, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Daniel E. Goldman,
27                                     Assistant Director; Mona Maria
28                                     Yousif, Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DISMISSED in part and DENIED in part.

 5       Shan Hui Xue, a native and citizen of China, seeks

 6   review of an April 30, 2013, decision of the BIA affirming

 7   an Immigration Judge’s (“IJ”) August 23, 2011, denial of

 8   asylum, withholding of removal, and relief under the

 9   Convention Against Torture (“CAT”).     In re Shan Hui Xue, No.

10   A200 923 597 (B.I.A. Apr. 30, 2013), aff’g No. A200 923 597

11   (Immig. Ct. N.Y. City Aug. 23, 2011).    We assume the

12   parties’ familiarity with the underlying facts and

13   procedural history of this case.

14       Under the circumstances of this case, we have reviewed

15   the IJ’s decision as modified by the BIA.     See Xue Hong Yang

16   v. U.S. DOJ, 426 F.3d 520, 522 (2d Cir. 2005).    The

17   applicable standards of review are well established.     See

18   8 U.S.C. § 1252(b)(4)(B); see Yanqin Weng v. Holder, 562

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

20       Pursuant to 8 U.S.C. § 1158(a)(3), we lack jurisdiction

21   to review the agency’s determination that an asylum

22   application is untimely.   See 8 U.S.C. § 1158(a)(2)(B).

23   Although we retain jurisdiction to review “constitutional

                                     2
 1   claims or questions of law,”    8 U.S.C. § 1252(a)(2)(D), Xue

 2   challenges only the weight accorded certain evidence.

 3   Accordingly, he has not raised a colorable question of law

 4   or constitutional claim.    We therefore dismiss the petition

 5   as to asylum.

 6       We do have jurisdiction to review the agency’s denial

 7   of withholding of removal and CAT relief on credibility

 8   grounds.    For applications, like Xue’s, governed by the REAL

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

10   circumstances,” base a credibility finding on

11   inconsistencies in the applicant’s statements and other

12   record evidence “without regard to whether” those

13   inconsistencies go “to the heart of the applicant’s claim.”

14   8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin

15   v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008) (per

16   curiam).    Here, substantial evidence supports the agency’s

17   decision.

18        As Xue’s withholding of removal and CAT claims share

19   the same factual predicate, the adverse credibility

20   determination is dispositive of both.    See Paul v. Gonzales,

21   444 F.3d 148, 155-57 (2d Cir. 2006).

22



                                    3
1        For the foregoing reasons, the petition for review is

2    DISMISSED in part and DENIED in part.   As we have completed

3    our review, any stay of removal that the Court previously

4    granted in this petition is VACATED, and any pending motion

5    for a stay of removal in this petition is DISMISSED as moot.

6    Any pending request for oral argument in this petition is

7    DENIED in accordance with Federal Rule of Appellate

8    Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

 9                              FOR THE COURT:
10                              Catherine O’Hagan Wolfe, Clerk
11
12
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