         12-2151
         Ye v. Holder
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A089 845 763
                          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 18th day of July, two thousand thirteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                PIERRE N. LEVAL,
 9                JOSÉ A. CABRANES,
10                     Circuit Judges.
11       _____________________________________
12
13       LEI YE,
14                      Petitioner,
15
16                      v.                                      12-2151
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Yee Ling Poon; Robert Duk-Hwan Kim,
24                                     Law Office of Yee Ling Poon, LLC,
25                                     New York, New York.
26
27       FOR RESPONDENT:               Stuart F. Delery, Principal Deputy
28                                     Assistant Attorney General; Ernesto
29                                     H. Molina, Jr., Assistant Director;
 1                          Andrew N. O’Malley, Trial Attorney,
 2                          Office of Immigration Litigation,
 3                          U.S. Department of Justice,
 4                          Washington D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10       Petitioner Lei Ye, a native and citizen of the People’s

11   Republic of China, seeks review of an April 27, 2012,

12   decision of the BIA, affirming the February 7, 2011,

13   decision of Immigration Judge (“IJ”) Mary Cheng, denying

14   Ye’s application for asylum, withholding of removal, and

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

16   Lei Ye, No. A089 845 763 (B.I.A. Apr. 27, 2012), aff’g No.

17   A089 845 763 (Immig. Ct. N.Y. City Feb. 7, 2011).     We assume

18   the parties’ familiarity with the underlying facts and

19   procedural history in this case.

20       Under the circumstances of this case, we have reviewed

21   the IJ’s decision as modified and supplemented by the BIA.

22   See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

23   522 (2d Cir. 2005); see also See Yan Chen v. Gonzales, 417

24   F.3d 268, 271 (2d Cir. 2005); Lin Zhong v. U.S. Dep’t of

25   Justice, 480 F.3d 104, 107 n.1, 122 (2d Cir. 2007).     The

                                  2
 1   applicable standards of review are well-established.     See

 2   8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,

 3   534 F.3d 162, 165-66 (2d Cir. 2008); Li Yong Cao v. U.S.

 4   Dep’t of Justice, 421 F.3d 149, 156-57 (2d Cir. 2005).

 5       For asylum applications governed by the REAL ID Act,

 6   such as the application in this case, the agency may,

 7   considering the totality of the circumstances, base a

 8   credibility finding on an asylum applicant’s demeanor and

 9   inconsistencies in her statements and other record evidence,

10   without regard to whether they go “to the heart of the

11   applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

12   Lin, 534 F.3d at 163-64.   Substantial evidence supports the

13   agency’s adverse credibility determination.

14       In finding Ye not credible, the IJ reasonably relied on

15   Ye’s demeanor, noting that her testimony was unresponsive,

16   evasive, and rehearsed.    See 8 U.S.C. § 1158(b)(1)(B)(iii);

17   see also Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir.

18   2005).   That finding is supported by the hearing transcript.

19       The IJ’s adverse credibility determination is further

20   supported by specific examples of contradictory testimony.

21   See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109

22   (2d Cir. 2006) (“We can be still more confident in our


                                    3
 1   review of observations about an applicant’s demeanor where,

 2   as here, they are supported by specific examples of

 3   inconsistent testimony.”).    Indeed, the IJ reasonably found

 4   discrepancies in Ye’s testimony regarding certain pertinent

 5   dates and her knowledge of the dangers of distributing Falun

 6   Gong materials in China.     See Xiu Xia Lin, 534 F.3d at 163-

 7   64.   Ye failed to provide compelling explanations for these

 8   discrepancies.     See Majidi, 430 F.3d at 80-81.

 9         Thus, given the IJ’s demeanor finding and the record

10   discrepancies, we find the IJ’s adverse credibility

11   determination supported by substantial evidence.     See

12   8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534

13   F.3d at 163-64.    Because the IJ’s adverse credibility

14   determination related to both Ye’s claim of past persecution

15   and her claim of a well-founded fear of future persecution,

16   that determination was dispositive of her applications for

17   asylum, withholding of removal, and CAT relief and we need

18   not consider the agency’s alternative burden of proof

19   findings.     See Paul v. Gonzales, 444 F.3d 148, 155-57 (2d

20   Cir. 2006).

21         Finally, the BIA did not err by declining to consider

22   Ye’s new evidence on appeal because she failed to file a

23   motion to remand or provide any argument as to why the new

                                     4
 1   evidence presented would alter the result in her case.     See

 2   8 C.F.R. § 1003.1(d)(3)(iv) (requiring a party asserting

 3   that the BIA cannot properly resolve an appeal without

 4   further fact-finding to file a motion to remand); see also

 5   Matter of Fedorenko, 19 I. & N. Dec. 57, 74 (B.I.A. 1984)

 6   (recognizing that, as an appellate body, the BIA may not

 7   review evidence proffered for the first time on appeal).

 8       For the foregoing reasons, the petition for review is

 9   DENIED.   As we have completed our review, any stay of

10   removal that the Court previously granted in this petition

11   is VACATED, and any pending motion for a stay of removal in

12   this petition is DISMISSED as moot.    Any pending request for

13   oral argument in this petition is DENIED in accordance with

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

15   Circuit Local Rule 34.1(b).

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




                                    5
