         12-1556
         Xu v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A089 253 586
                                                                               A089 253 587
                         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 16th day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROSEMARY S. POOLER,
 9                REENA RAGGI,
10                     Circuit Judges.
11       _____________________________________
12
13       CHENG SHU XU, XUE FAN PIAO,
14                Petitioners,
15
16                      v.                                      12-1556
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONERS:              Evan Goldberg, Of Counsel for the
24                                     Law Office of Theodore M. Davis, New
25                                     York, NY.
26
27       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
28                                     Attorney General; John S. Hogan,
29                                     Senior Litigation Counsel; Ashley Y.
30                                     Martin, Trial Attorney, Office of
31                                     Immigration Litigation, United
32                                     States Department of Justice,
33                                     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       Petitioners Cheng Shu Xu and Xue Fan Piao, wife and

 6   husband and natives and citizens of China, seek review of a

 7   March 29, 2012, order of the BIA, affirming the December 21,

 8   2009, decision of Immigration Judge (“IJ”) Alan Vomacka,

 9   pretermitting their applications for asylum and denying

10   withholding of removal and relief under the Convention

11   Against Torture (“CAT”).   In re Cheng Shu Xu, Xue Fan Piao,

12   Nos. A089 253 586/587 (B.I.A. Mar. 29, 2012), aff’g Nos.

13   A089 253 586/587 (Immig. Ct. N.Y. City Dec. 21, 2009).       We

14   assume the parties’ familiarity with the underlying facts

15   and procedural history in this case.

16       Under the circumstances of this case, we have reviewed

17   both the BIA’s and IJ’s opinions, including the portions of

18   the IJ’s decision not explicitly discussed by the BIA.

19   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).

20   The applicable standards of review are well established.

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

22   F.3d 510, 513 (2d Cir. 2009).       Petitioners challenge only

23   the denial of withholding of removal and CAT relief on the

24   basis of their harboring of North Korean refugees in China.

                                     2
 1       For applications governed by the REAL ID Act of 2005,

 2   the agency may base a credibility finding on an asylum

 3   applicant’s demeanor, the plausibility of her account, and

 4   inconsistencies in her statements, without regard to whether

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

 6   § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,

 7   265 (B.I.A. 2007).   “We defer . . . to an IJ’s credibility

 8   determination unless, from the totality of the

 9   circumstances, it is plain that no reasonable fact-finder

10   could make such an adverse credibility ruling.”     Xiu Xia Lin

11   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

12       Petitioners do not contest the credibility-based

13   denials of their family planning claims and Xu’s pro-

14   democracy claim. Instead, Petitioners argue that the

15   agency’s adverse credibility determination did not apply to

16   their refugee harboring claim.    However, Petitioners’

17   argument is misplaced.   Indeed, the IJ explicitly determined

18   that the lack of corroborating evidence concerning the scar

19   that Xu allegedly obtained during her detention for refugee

20   harboring further undermined her credibility.     Moreover,

21   because Xu’s and Piao’s applications indicated that they

22   fled China for fear of being sent for medical treatment if


                                   3
 1   they were again caught harboring refugees, the uncontested

 2   discrepancies in the record concerning when Piao left his

 3   home, when he left China, and where and for how long he went

 4   into hiding in between related directly to Petitioners’

 5   refugee harboring claim.

 6       In addition, the IJ properly based the adverse

 7   credibility determination, in part, on an inconsistency

 8   between Petitioners’ application statements concerning who

 9   was primarily responsible for harboring the North Korean

10   refugees.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

11   534 F.3d at 167.   Although the IJ acknowledged that this

12   inconsistency was not a major point, “an IJ may rely on any

13   inconsistency or omission in making an adverse credibility

14   determination as long as the ‘totality of the circumstances’

15   establishes that an asylum applicant is not credible.”      Xiu

16   Xia Lin, 534 F.3d at 167.   Here, in addition to this

17   admittedly minor point, the totality of the circumstances

18   included extensive and uncontested discrepancies in the

19   record concerning Petitioners’ family planning claims and

20   Xu’s pro-democracy claim, as well as an explicit finding

21   that Xu had deliberately misstated answers to other

22   questions in an attempt to inflate Petitioners’ claims.     All


                                   4
 1   of these discrepancies, coupled with the identified

 2   refugee-harboring-specific discrepancies, afforded a

 3   reasonable basis for the agency to deny all of Petitioners’

 4   claims, which were entirely dependent on their credibility.

 5   See Xiu Xia Lin, 534 F.3d at 167; Paul v. Gonzales, 444 F.3d

 6   148, 156 (2d Cir. 2006); cf. Siewe v. Gonzales, 480 F.3d

 7   160, 168-69 (2d Cir. 2007).   Therefore, we are unable to

 8   conclude, based on the totality of the circumstances, that

 9   “no reasonable fact-finder could make such an adverse

10   credibility ruling.”   Xiu Xia Lin, 534 F.3d at 167.

11       Having called Petitioners’ credibility into question,

12   the agency reasonably noted that Xu’s failure to provide

13   corroborative evidence concerning the scar on her wrist,

14   which she testified was the result of being stepped on

15   during her March 2006 detention for refugee harboring,

16   further undermined her credibility.   See 8 U.S.C.

17   § 1158(b)(1)(B)(ii) (“The testimony of the applicant may be

18   sufficient to sustain the applicant’s burden without

19   corroboration, but only if the applicant satisfies the trier

20   of fact that the applicant’s testimony is credible, is

21   persuasive, and refers to specific facts sufficient to

22   demonstrate that the applicant is a refugee.” (emphasis

23   added)).   Although Petitioners contend, based on non-
                                   5
 1   controlling authority, that the agency imposed an

 2   unreasonable requirement that Xu produce medical evidence

 3   demonstrating that her scar was from the beating, the IJ

 4   merely stated that it may be possible and often has been

 5   possible to obtain medical evidence concerning the cause of

 6   the scar. We have recognized that an applicant’s failure to

 7   corroborate her testimony may bear on credibility, either

 8   because the absence of particular corroborating evidence is

 9   viewed as suspicious, or because the absence of

10   corroboration in general makes an applicant unable to

11   rehabilitate testimony that has already been called into

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

13   Cir. 2007).

14       Because the agency’s credibility-based denial of

15   Petitioners’ refugee harboring claim is supported by

16   substantial evidence, Petitioners’ assertion that the agency

17   erred in failing to explicitly assess the country conditions

18   evidence concerning the treatment of North Korean refugee

19   harborers in China is misplaced.     See Xiao Ji Chen v. U.S.

20   Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)

21   (presuming that the agency “has taken into account all of

22   the evidence before [it], unless the record compellingly

23   suggests otherwise”); Zhi Yun Gao v. Mukasey, 508 F.3d 86,
                                     6
 1   87 (2d Cir. 2007) (the agency “need not expressly parse or

 2   refute on the record each individual argument or piece of

 3   evidence offered by the petitioner” (internal quotation

 4   marks omitted)); see also INS v. Bagamasbad, 429 U.S. 24, 25

 5   (1976) (“As a general rule courts and agencies are not

 6   required to make findings on issues the decision of which is

 7   unnecessary to the results they reach.”).

 8       Lastly, because, as the BIA recognized, the only basis

 9   for Petitioners’ claims depended on their credibility, the

10   agency also did not err in denying CAT relief on

11   Petitioners’ refugee harboring claim.   See Xue Hong Yang v.

12   U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

13       For the foregoing reasons, the petition for review is

14   DENIED.

15

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




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