    12-4043
    Guo v. Holder
                                                                                   BIA
                                                                             Poczter, IJ
                                                                          A200 930 255
                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT
                                  SUMMARY ORDER
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         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 2nd day of May, two thousand fourteen.

    PRESENT:
             JOSÉ A. CABRANES,
             SUSAN L. CARNEY,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.
    _____________________________________

    PING GUO,
                    Petitioner,

                    v.                                     12-4043
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                David A. Bredin, New York, NY.

    FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
                                   General; Linda S. Wernery, Assistant
                                   Director; William C. Minick, 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 DISMISSED in part and DENIED in part.

     Ping Guo, a native and citizen of China, seeks review

of a September 20, 2012 decision of the BIA affirming the

July 13, 2011 decision of an Immigration Judge (“IJ”), which

denied her application for asylum, withholding of removal,

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

re Ping Guo, No. A200 930 255 (B.I.A. Sept. 20, 2012), aff’g

No. 200 930 255 (Immig. Ct. N.Y. City July 13, 2011).   We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

     Under the circumstances of this case, we have reviewed

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

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

522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271

(2d Cir. 2005).   The applicable standards of review are well

established.   See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

I.   Asylum

     We dismiss the petition to the extent Guo challenges

the pretermission of her asylum application as untimely.

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Title 8, Section 1158(a)(3) of the United States Code

provides that no court shall have jurisdiction to review the

agency’s finding under 8 U.S.C. § 1158(a)(2)(B) that an

asylum application was untimely.      Although we retain

jurisdiction to review “constitutional claims or questions

of law,” 8 U.S.C. § 1252(a)(2)(D), we lack jurisdiction to

review the denial of Guo’s asylum application because Guo

challenges only the IJ’s factual findings as to the

credibility of her testimony regarding the timing of her

arrival in the United States.

II.   Adverse Credibility Determination

      To the extent Guo challenges the agency’s denial of

withholding of removal and CAT relief on credibility

grounds, we deny the petition.      For applications such as

Guo’s, which are governed by the REAL ID Act of 2005, the

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

circumstances,” base a credibility finding on an applicant’s

“demeanor, candor, or responsiveness,” the plausibility of

her account, and inconsistencies in her statements, without

regard to whether they go “to the heart of the applicant’s

claim.”   8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see

Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)


                                3
(per curiam).   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 agency reasonably based its adverse credibility

determination on Guo’s demeanor and the internal

inconsistencies in her testimony regarding the length of her

trip from China to the United States, whether she was

interviewed by an asylum officer, the number of security

guards that allegedly beat her, and whether she was

interrogated.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

Lin, 534 F.3d at 167 (noting that, post-REAL ID Act, “an IJ

may rely on any inconsistency or omission in making an

adverse credibility determination as long as the ‘totality

of the circumstances’ establishes that an asylum applicant

is not credible” (emphasis in original)).

    Contrary to Guo’s argument that the discrepancies

relied on by the agency were minor and therefore

insufficient, the inconsistencies regarding the beating and

interrogation relate to the sole basis of Guo’s claim that

she was persecuted in China for her Christian activities,


                              4
and alone could constitute substantial evidence in support

of the adverse credibility determination.   See Xian Tuan Ye

v. DHS, 446 F.3d 289, 295-96 (2d Cir. 2006) (per curiam).

Moreover, the BIA reasonably declined to credit Guo’s

explanation that stress, confusion, the passage of time, and

lack of education caused the inconsistencies.   See Majidi v.

Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (the agency need

not credit an applicant’s explanations for inconsistent

testimony unless those explanations would compel a

reasonable fact-finder to do so).

    Given the inconsistencies and the demeanor finding, the

totality of the circumstances supports the agency’s adverse

credibility determination.   See 8 U.S.C.

§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d

at 167.   Because the strength of the only evidence of a

threat to Guo’s life or freedom depended upon her

credibility, the adverse credibility determination in this

case necessarily precludes Guo’s success on her claims for

withholding of removal and CAT relief and the agency did not

err in failing to provide a separate CAT analysis.   See Paul

v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang

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

We lack jurisdiction to consider Guo’s allegations of
                              5
ineffective assistance of counsel as they were not raised

before the BIA.   See Garcia-Martinez v. Dep’t of Homeland

Sec., 448 F.3d 511, 513-14 (2d Cir. 2006); Arango-Aradondo

v. INS, 13 F.3d 610, 614-15 (2d Cir. 1994).

    For the foregoing reasons, the petition for review is

DISMISSED in part, and DENIED in part.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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