         12-3280
         Qian v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A087 785 254
                            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 October, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       JUN QIAN,
14                        Petitioner,
15
16                        v.                                    12-3280
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 Guang Jun Gao, Law Offices of Guang
24                                       Jun Gao, LLP, New York, New York.
25
26       FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
27                                       Attorney General; William C.
28                                       Peachey, Assistant Director; Puneet
29                                       Cheema, Trial Attorney, Office of
30                                       Immigration Litigation, United
31                                       States Department of Justice,
32                                       Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Petitioner Jun Qian, a native and citizen of China,

 6   seeks review of a July 23, 2012 decision of the BIA

 7   affirming a May 4, 2011 decision of the Immigration Judge

 8   (“IJ”), denying Qian’s application for asylum, withholding

 9   of removal and relief under the Convention Against Torture

10   (“CAT”).     In re Jun Qian, No. A087 785 254 (B.I.A. July 23,

11   2012), aff’g No. A087 785 254 (Immig. Ct. N.Y. City May 4,

12   2011).     We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we review the

15   decisions of both the IJ and the BIA.     See Guan v. Gonzales,

16   432 F.3d 391, 394 (2d Cir. 2005).     The applicable standards

17   of review are well-established. See 8 U.S.C.

18   § 1252(b)(4)(B); Weng v. Holder, 562 F.3d 510, 513 (2d Cir.

19   2009).

20       For applications like this one, governed by the REAL ID

21   Act of 2005, the agency may, considering the totality of the

22   circumstances, base a credibility finding on an asylum

23   applicant’s demeanor, the plausibility of his account, and

                                     2
 1   inconsistencies in his statements, without regard to whether

 2   they go “to the heart of the applicant's claim.” 8 U.S.C.

 3   § 1158(b)(1)(B)(iii); Matter of J–Y–C–, 24 I. & N. Dec. 260,

 4   265 (B.I.A. 2007). Analyzed under these standards, the

 5   agency’s adverse credibility determination is supported by

 6   substantial evidence.

 7       In finding Qian not credible, the IJ reasonably relied

 8   on inconsistencies between his testimony, asylum

 9   application, and documentary evidence as to when he had

10   surgery and when he was released from the hospital.

11   Contrary to Qian’s contention, the IJ did consider his

12   explanation that he was mistaken about the relevant dates

13   because he was nervous.   However, given the glaring

14   inconsistencies, both within Qian’s testimony, and between

15   his testimony, his asylum application, and his documentary

16   evidence, which he was never able to reconcile, the agency

17   was not required to accept this explanation.     See Majidi v.

18   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that

19   the agency need not credit an applicant’s explanations for

20   inconsistent testimony unless those explanations would

21   compel a reasonable fact-finder to do so).     This is all the

22   more true where, as here, Qian also attempted to explain the


                                   3
 1   inconsistencies by testifying that his asylum application

 2   contained the wrong date because his father (who remains in

 3   China) had made a mistake.

 4       There is no merit to Qian’s argument that the IJ erred

 5   by relying on minor inconsistencies.   Under the REAL ID Act,

 6   “an IJ may rely on any inconsistency or omission in making

 7   an adverse credibility determination as long as the

 8   ‘totality of the circumstances’ establishes that an asylum

 9   applicant is not credible.”   Xiu Xia Lin v. Mukasey, 534

10   F.3d 162, 167 (2d Cir. 2008) (emphasis in original).

11   Moreover, Qian’s inconsistencies cannot be considered minor.

12   Based on the different dates he provided for his release

13   from the hospital, he variously asserted that he had been

14   hospitalized for two days, two weeks, and one month

15   following surgery.

16       Finally, Qian contends that the agency’s decision is

17   inconsistent with the United Nations High Commissioner for

18   Refugees Handbook on Procedures and Criteria for Determining

19   Refugee Status (the “U.N. Handbook”), which provides that

20   untrue statements, alone, are not a sufficient basis for

21   denying refugee status.   However, the U.N. Handbook is not

22   binding on either the agency or this Court.   See INS v.

23   Aguirre-Aguirre, 526 U.S. 415, 427 (1999).

                                   4
 1       Accordingly, substantial evidence supports the agency’s

 2   adverse credibility determination.    See 8 U.S.C.

 3   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.     Having

 4   reasonably found that Qian failed to establish eligibility

 5   for asylum on credibility grounds, the agency did not err in

 6   denying withholding of removal and relief under the CAT, as

 7   these claims shared the same factual predicate.      See Paul v.

 8   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Yang v. U.S.

 9   Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).        For

10   the foregoing reasons, the petition for review is DENIED.

11   As we have completed our review, any stay of removal that

12   the Court previously granted in this petition is VACATED,

13   and any pending motion for a stay of removal in this

14   petition is DISMISSED as moot. Any pending request for oral

15   argument in this petition is DENIED in accordance with

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

17   Circuit Local Rule 34.1(b).

18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk
20




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