     16-1084
     Wu v. Sessions
                                                                                       BIA
                                                                                   Segal, IJ
                                                                               A200 283 647

                           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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   23rd day of June, two thousand seventeen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            BARRINGTON D. PARKER,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   JIAN YING WU,
14            Petitioner,
15
16                    v.                                             16-1084
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Michael Brown, New York, NY.
24
25   FOR RESPONDENT:                     Joyce R. Branda, Acting Assistant
26                                       Attorney General; Stephen J. Flynn,
27                                       Assistant Director; Jeffrey R.
28                                       Meyer, Attorney, Office of
29                                       Immigration Litigation, United
30                                       States Department of Justice,
31                                       Washington, DC.
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 is

4    DENIED.

5        Petitioner Jian Ying Wu, a native and citizen of the

6    People’s Republic of China, seeks review of a March 23, 2016,

7    decision of the BIA, affirming a July 3, 2014, decision of an

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

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).    In re Jian Ying Wu, No. A200 283 647 (B.I.A.

11   Mar. 23, 2016), aff’g No. A200 283 647 (Immig. Ct. N.Y. City

12   July 3, 2014).     We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed both

15   the IJ’s and the BIA’s opinions “for the sake of completeness.”

16   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

17   2006).    The    applicable   standards   of   review   are   well

18   established.     See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

19   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

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

21   Act, the agency may, “[c]onsidering the totality of the
                                     2
1    circumstances,” base a credibility finding on inconsistencies

2    in an applicant’s and her witness’s statements, “without regard

3    to whether” those inconsistencies go “to the heart of the

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

5    Lin, 534 F.3d at 163-64, 167.           “We defer . . . to an IJ’s

6    credibility determination unless, from the totality of the

7    circumstances, it is plain that no reasonable fact-finder could

8    make such an adverse credibility ruling.”           Xiu Xia Lin, 534 F.3d

9    at 167.   Substantial evidence supports the adverse credibility

10   determination in this case.

11       Wu testified that, on one occasion in 2014, she and her

12   husband visited her witness Ye Qing’s home and that she met

13   Qing’s    wife.     This   conflicted    both      with   Wu’s   husband’s

14   testimony (he denied meeting Qing’s wife) and Qing’s testimony

15   (he and his wife divorced in 2001 and he lived only with his

16   child).    The agency reasonably concluded that this “blaringly

17   inconsistent”     testimony    could    not   be    rectified     with   an

18   explanation.      Cf. Ming Shi Xue v. BIA, 439 F.3d 111, 122, n.13

19   & 125 (2d Cir. 2006) (where the “inconsistency is ‘dramatic’

20   or obvious on its face . . . the petitioner can be assumed to

21   be aware-without being told-of the need to explain it”).                 And
                                        3
1    Wu’s current explanation—that she assumed the woman she met at

2    Qing’s home was his wife—does not compel a contrary conclusion:

3    neither Wu’s husband nor Qing testified that a woman was present

4    during that visit.     Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

5    2005) (“A petitioner must do more than offer a plausible

6    explanation for h[er] inconsistent statements to secure relief;

7    he must demonstrate that a reasonable fact-finder would be

8    compelled to credit h[er] testimony.” (quoting Zhou Yun Zhang

9    v. U.S. INS, 386 F.3d 77, 76 (2d Cir. 2004))).

10       The agency also reasonably relied on inconsistencies

11   concerning the last time Wu, her husband, and Qing dined

12   together.   Wu’s husband testified that they last saw each other

13   for breakfast two days before the merits hearing.         But Qing

14   testified that they last dined together more than a month

15   earlier and emphasized that he had not seen Wu or her husband

16   since that date.     When asked to reconcile this testimony, Qing

17   tried to explain away the more recent meeting, stating that they

18   “bumped into each other on the street” and decided to go to

19   breakfast on a whim.    The agency reasonably concluded that this

20   was not “a persuasive explanation” for the inconsistency

21   because it did not resolve Qing’s initial testimony that he had
                                       4
1    not seen Wu and her husband in over a month.    See Majidi, 430

2    F.3d at 80.   Wu’s current explanation that Qing and her husband

3    “were describing two separate incidents” similarly misses the

4    mark because it also does not resolve when they last saw each

5    other.   See id.

6        The agency also reasonably relied on Wu’s husband’s

7    internally inconsistent testimony.    See 8 U.S.C.

8    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.      Wu’s

9    husband testified that he worked in Queens, detailing his drive

10   there from his home in Brooklyn.    But when confronted with a

11   copy of his W-2, listing an employer in Manhattan, he changed

12   his testimony, denied ever working in Queens, and gave reasons

13   why he commuted to Manhattan by bus, rather than driving.    The

14   IJ was not compelled to accept Wu’s husband’s explanation—that

15   his accountant was in Queens—because he was asked how he got

16   to work, not how he got to his accountant’s office.   See Majidi,

17   430 F.3d at 80.

18       Wu now argues that it was error for the IJ to rely on this

19   inconsistency given her husband’s testimony “that he does not

20   have one stable job.”     While it is true that Wu’s husband

21   testified that he had worked as a cook in Maryland and traveled
                                     5
1    back and forth to New York, this explanation again misses the

2    mark    because    the   inconsistency        concerned       Wu’s      husband’s

3    testimony about his work in New York.               See Majidi, 430 F.3d at

4    80.

5           While   seemingly    minor,         these     inconsistencies        taken

6    together are significant, because they call into question Wu’s

7    relationship      with   Qing   and,       thus,    whether    Qing      actually

8    witnessed Wu practicing Falun Gong.                That, in turn, calls into

9    question whether Wu practices Falun Gong and thus whether she

10   was ever harmed in China on that basis.               See Siewe v. Gonzales,

11   480 F.3d 160, 170 (2d Cir. 2007) (finding that “where an IJ’s

12   finding of fabrication (supported by substantial evidence)

13   serves as the basis for discrediting other evidence, a reviewing

14   court is in no position to conclude that the discrediting of

15   the    remaining     evidence     is       unsupported        by   substantial

16   evidence”).

17          Given   these     inconsistencies,          which   undermined       Wu’s

18   credibility, it cannot be said “that no reasonable fact-finder

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

20   534 F.3d at 167; see also Siewe, 480 F.3d at 170.                    The adverse

21   credibility       determination        is     dispositive          of     asylum,
                                            6
1    withholding of removal, and CAT relief because all three forms

2    of relief are based on the same factual predicate.    Paul v.

3    Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

4        For the foregoing reasons, the petition for review is

5    DENIED.   Because we have completed our review, Wu’s pending

6    motion for a stay of removal is DENIED as moot.   Any pending

7    request for oral argument in this petition is DENIED in

8    accordance with Federal Rule of Appellate Procedure 34(a)(2),

9    and Second Circuit Local Rule 34.1(b).

10                               FOR THE COURT:
11                               Catherine O’Hagan Wolfe, Clerk




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