     17-2116
     Wu v. Sessions
                                                                                   BIA
                                                                             Zagzoug, IJ
                                                                           A200 179 364
                           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 TO 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 7th day of November, two thousand eighteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RICHARD C. WESLEY,
10            DENNY CHIN,
11                 Circuit Judges.
12   _____________________________________
13
14   XINYI WU,
15                          Petitioner,
16
17                    v.                                         17-2116
18                                                               NAC
19   JEFFERSON B. SESSIONS III,
20   UNITED STATES ATTORNEY GENERAL,
21                 Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                      Mike P. Gao, Flushing, NY.
25
26   FOR RESPONDENT:                      Jody Hunt, Assistant Attorney
27                                        General; Stephen J. Flynn,
28                                        Assistant Director; James A.
29                                        Hurley, Arthur L. Rabin, Trial
1                                  Attorneys, Office of Immigration
2                                  Litigation, United States
3                                  Department of Justice, Washington,
4                                  DC.
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 Xinyi Wu, a native and citizen of the People’s

11   Republic of China, seeks review of a June 13, 2017, decision

12   of the BIA affirming an October 18, 2016, decision of an

13   Immigration Judge (“IJ”) denying Wu’s application for asylum,

14   withholding   of   removal,   and       relief   under   the   Convention

15   Against Torture (“CAT”).      In re Xinyi Wu, No. A 200 179 364

16   (B.I.A. June 13, 2017), aff’g No. A 200 179 364 (Immig. Ct.

17   N.Y. City Oct. 18, 2016).     We assume the parties’ familiarity

18   with the underlying facts and procedural history in this case.

19       In lieu of filing a brief, the Government moves for

20   summary denial of Wu’s petition for review.              Summary denial

21   is warranted only if a petition is frivolous. Pillay v. INS,

22   45 F.3d 14, 17 (2d Cir. 1995). Because the petition is not

23   frivolous and because Wu has filed his merits brief, we deny

                                         2
1    the Government’s petition and treat the Government’s motion

2    as a response to Wu’s brief.

3        We have reviewed the IJ’s decision as modified by the

4    BIA and address only the adverse credibility determination.

5    See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

6    (2d Cir. 2005).         “We defer . . . to an IJ’s credibility

7    determination unless . . . it is plain that no reasonable

8    fact-finder could make such an adverse credibility ruling.”

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

10   Substantial evidence supports the agency’s determination that

11   Wu was not credible.

12       First, the IJ reasonably relied on an inconsistency in

13   Wu’s description of the letter he provided to the Chinese

14   authorities.         See   8    U.S.C.    § 1158(b)(1)(B)(iii).         Wu

15   testified that he filed an original, signed complaint letter

16   with the Chinese authorities but could not clarify how he

17   also filed that same original letter with the immigration

18   court.    This       inconsistency,      which     called   into   question

19   whether   Wu   had     ever    complained     to    the   authorities   and

20   undermined     the     reliability       of   his    evidence,     provided

21   substantial support for the IJ’s adverse credibility ruling.
                                          3
1    See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295

2    (2d   Cir.    2006)    (per        curium)         (holding     that       material

3    inconsistency relating to central aspect of asylum claim

4    provided     substantial      evidence            for    adverse      credibility

5    determination).       Wu’s explanation that he did not remember

6    whether he sent an original to Chinese authorities did not

7    resolve the problem.       See Majidi v. Gonzales, 430 F.3d 77,

8    80 (2d Cir. 2005) (“A petitioner must do more than offer a

9    plausible explanation for his inconsistent statements to

10   secure relief; he must demonstrate that a reasonable fact-

11   finder would be compelled to credit his testimony.” (internal

12   quotation marks omitted)).

13         Second, the IJ reasonably relied on an inconsistency

14   between    Wu’s   testimony        and       a    letter     from    two    alleged

15   coworkers.    See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu

16   Xia Lin, 534 F.3d at 167 (upholding IJ’s reliance on omissions

17   and   inconsistencies         in     letters            in   reaching      adverse

18   credibility    determination).               Wu    testified        that   the   two

19   colleagues who accompanied him to the 2010 protest were also

20   arrested but still worked for the company from which he was

21   fired.     But the coworkers’ letter states that they were all
                                              4
1    fired.    This inconsistency, particularly when combined with

2    Wu’s erroneous testimony about the gender of one of the

3    letter’s authors, casts doubt on his claim and is indicative

4    of fabricated evidence.        The IJ was not required to credit

5    Wu’s uncorroborated explanation that his coworkers simply

6    continued working despite their termination, particularly

7    given the statement in the letter that they were dismissed

8    “ruthlessly” from their jobs.             See also Wensheng Yan v.

9    Mukasey, 509 F.3d 63, 67 (2d Cir. 2007) (holding that, so

10   long as IJ’s finding is “tethered to record evidence, and

11   there    is   nothing   else   in   the   record   from   which   a   firm

12   conviction of error could properly be derived,” we will not

13   disturb that finding).

14       Finally, the agency’s demeanor finding, to which we

15   defer, bolsters the IJ’s adverse credibility determination.

16   See 8 U.S.C. § 1158(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t

17   of Justice, 453 F.3d 99, 109 (2d Cir. 2006).              Because the IJ

18   is in the best position to evaluate testimony, we defer to

19   the IJ’s reliance on the contrast between Wu’s “confident and

20   fluid” testimony during direct examination and his “hesitant,

21   contradictory and unpersuasive” answers to questions during
                                          5
1    cross-examination.      See Li Hua Lin, 453 F.3d at 109 (“We can

2    be still more confident in our review of observations about

3    an applicant’s demeanor where, as here, they are supported by

4    specific examples of inconsistent testimony.”).

5        Given     the     multiple    inconsistencies       between    Wu’s

6    testimony and record evidence, as well as the IJ’s demeanor

7    finding,    the   totality   of   the   circumstances   supports   the

8    agency’s adverse credibility determination.               The adverse

9    credibility       determination    is     dispositive    of   asylum,

10   withholding of removal, and CAT relief because all three

11   claims rely on Wu’s credibility.          See Paul v. Gonzales, 444

12   F.3d 148, 156-57 (2d Cir. 2006).

13       For the foregoing reasons, the petition for review is

14   DENIED.    As we have completed our review, the Government’s

15   motion for summary denial and Wu’s motion for a stay of

16   removal are DISMISSED as moot.          Any pending request for oral

17   argument in this petition is DENIED in accordance with Federal

18   Rule of Appellate Procedure 34(a)(2), and Second Circuit

19   Local Rule 34.1(b).

20                                     FOR THE COURT:
21                                     Catherine O’Hagan Wolfe,
22                                     Clerk of Court
                                        6
