         13-336
         Wu v. Holder
                                                                                         BIA
                                                                            Gordon-Uruakpa, IJ
                                                                                 A089 094 899
                         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 12th day of May, two thousand fourteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       ZHI YOU WU,
14                Petitioner,
15
16                      v.                                      13-336
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Gerald Karikari, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Luis E. Perez, Senior
27                                     Litigation Counsel; Justin R.
28                                     Markel, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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       Zhi You Wu, a native and citizen of China, seeks review

 6   of a January 3, 2012, decision of the BIA affirming the July

 7   7, 2011, decision of an Immigration Judge (“IJ”), which

 8   denied his application for asylum, withholding of removal,

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

10   re Zhi You Wu, No. A089 094 899 (B.I.A. Jan. 3, 2012), aff’g

11   No. A089 094 899 (Immig. Ct. N.Y. City Jul. 7, 2011).     We

12   assume the parties’ familiarity with the underlying facts

13   and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   both the IJ’s and the BIA’s opinions “for the sake of

16   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

17   2008).   The applicable standards of review are well

18   established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

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

20       For applications, like Wu’s, governed by the REAL ID

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

22   circumstances,” base a credibility finding on an asylum

23   applicant’s “demeanor, candor, or responsiveness,” the

                                     2
 1   plausibility of his account, and inconsistencies in his

 2   statements, without regard to whether they go “to the heart

 3   of the applicant’s claim.”     See 8 U.S.C.

 4   §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin v.

 5   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).     We “defer to an

 6   IJ’s credibility determination unless, from the totality of

 7   the circumstances, it is plain that no reasonable fact-

 8   finder could make such an adverse credibility ruling.”       Xiu

 9   Xia Lin, 534 F.3d at 167.

10       Here, the agency reasonably based its adverse

11   credibility determination on Wu’s inconsistent testimony and

12   failure to corroborate.     First, the agency reasonably found

13   Wu not credible based on the inconsistency between his

14   testimony that he had been detained, and the omission of

15   that information from his asylum application.     See 8 U.S.C.

16   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166 n.3.      At

17   the hearing, Wu testified that he had been detained for

18   three days by the family planning office, but on his asylum

19   application he stated he had never been detained.     When

20   questioned about the discrepancy, he had no explanation.

21   The failure to explain the inconsistency was reasonably

22   relied upon by the agency.     See Majidi v. Gonzales, 430 F.3d


                                     3
 1   77, 80 (2d Cir. 2005).     Moreover, this inconsistency goes to

 2   the heart of Wu’s claim.     See 8 U.S.C. § 1158(b)(1)(B)(iii);

 3   Xiu Xia Lin, 534 F.3d at 166 n.3.

 4       Second, the agency reasonably found that the lack of

 5   corroboration further harmed Wu’s credibility, given that

 6   the letter from his wife also failed to state that he had

 7   been detained.     See Biao Yang v. Gonzales, 496 F.3d 268, 273

 8   (2d Cir. 2007).     Furthermore, when asked why his wife’s

 9   letter made no mention of his detention, he had no

10   explanation.     Although Wu argued before the BIA that his

11   lawyer was ineffective because he had not included the

12   detention in the asylum application, he did not explain why

13   his wife would also have omitted such an important detail.

14   The reliance on this lack of corroboration is reasonable.

15       Because the only evidence of a threat to Wu’s life or

16   freedom depended upon his credibility, the adverse

17   credibility determination in this case also precluded

18   success on his claims for withholding of removal and CAT

19   relief.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

20   2006).

21       For the foregoing reasons, the petition for review is

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


                                     4
1   removal that the Court previously granted in this petition

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

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

4   oral argument in this petition is DENIED in accordance with

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

6   Circuit Local Rule 34.1(b).

7                                 FOR THE COURT:
8                                 Catherine O’Hagan Wolfe, Clerk

9




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