         13-817
         Li v. Holder
                                                                                       BIA
                                                                                 Morace, IJ
                                                                               A087 768 832
                         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 19th day of December, two thousand fourteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                GUIDO CALABRESI,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _____________________________________
12
13       GUIGEN LI,
14                Petitioner,
15
16                      v.                                      13-817
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Lee Ratner, Esq., Law Offices of
24                                     Michael Brown, New York, New York.
25
26       FOR RESPONDENT:               Matthew Allan Spurlock, Esq., Office
27                                     of Immigration Litigation, United
28                                     States Department of Justice,
29                                     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       Petitioner Guigen Li, a native and citizen of the

 6   People’s Republic of China, seeks review of a February 22,

 7   2013, decision of the BIA affirming the July 19, 2011,

 8   decision of an Immigration Judge (“IJ”), which denied his

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).   In re Guigen

11   Li, No. A087 768 832 (B.I.A. Feb. 22, 2013), aff’g No. A087

12   768 832 (Immig. Ct. N.Y. City July 19, 2011).   We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision, including the portions not explicitly

17   discussed by the BIA.   Yun-Zui Guan v. Gonzales, 432 F.3d

18   391, 394 (2d Cir. 2005).   The applicable standards of review

19   are well established.   See 8 U.S.C. § 1252(b)(4)(B); Yanqin

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

21       For asylum applications such as Li’s, which are

22   governed by the REAL ID Act, the agency may, considering the

23   totality of the circumstances, base a credibility finding on

                                   2
 1   an asylum applicant’s “demeanor, candor, or responsiveness,”

 2   the plausibility of his or her account, and inconsistencies

 3   in his or her statements, without regard to whether they go

 4   “to the heart of the applicant’s claim.”    See 8 U.S.C.

 5   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

 6   167 (2d Cir. 2008).

 7       The agency’s adverse credibility finding is supported

 8   by substantial evidence.   As the IJ correctly noted, Li’s

 9   asylum application and his testimony differed significantly

10   from his credible fear interview.    Li stated in his credible

11   fear interview that he left China because his home was

12   seized for development; while he identified himself as a

13   Christian, he explicitly stated that no one in China wanted

14   to harm him on account of his religion.    C.A.R. at 124, 128.

15   In his asylum application and testimony, however, Li claimed

16   that he left China because he was arrested for practicing

17   Christianity.   Id. at 244-60.

18       The IJ considered but rejected Li’s explanation for

19   this inconsistency that the smuggler who brought him into

20   the country urged him not to mention his religion, for fear

21   of reprisal by the Chinese government if he were deported.

22   This explanation, even if considered plausible, did not have


                                      3
 1   to be credited by the agency.       See 8 U.S.C.

 2   § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 80-81

 3   (2d Cir. 2005).   While Li contends that his evidence

 4   contained a mere omission, rather than an inconsistency,

 5   Pet. Br. at 10, the two are “functionally equivalent.”             Xiu

 6   Xia Lin, 534 F.3d at 167.   Moreover, as discussed, Li did

 7   not simply omit his claims of religious persecution; he

 8   explicitly denied that anyone in China sought to persecute

 9   him for his religion.   C.A.R. at 128.

10       As the BIA recognized, credible fear interviews

11   “warrant the close examination called for by” Ramsameachire

12   v. Ashcroft, 357 F.3d 169 (2d Cir. 2004).          Ming Zhang v.

13   Holder, 585 F.3d 715, 724 (2d Cir. 2009); C.A.R. at 3. Here,

14   the credible fear interview “bears sufficient indicia of

15   reliability to warrant its consideration by the agency.”

16   Ming Zhang, 585 F.3d at 724. There is no claim that Li was

17   coerced or had difficulty understanding the interpreter, and

18   question and answers at issue leave little room for

19   ambiguity.

20       Li’s argument that the IJ ignored evidence favorable to

21   his claim is also meritless.    The IJ explicitly considered

22   Li’s documentary evidence, which was reasonably found to be


                                     4
 1   very limited and unpersuasive.    See C.A.R. at 65.

 2   Accordingly, the IJ’s adverse credibility determination in

 3   this case is supported by substantial evidence.       Xiu Xia

 4   Lin, 534 F.3d at 167.

 5       Because the only evidence of a threat to Li’s life or

 6   freedom depended upon his credibility, the adverse

 7   credibility determination in this case necessarily precludes

 8   success on his claims for asylum, withholding of removal,

 9   and CAT relief.   See Paul v. Gonzales, 444 F.3d 148, 156-57

10   (2d Cir. 2006).

11       For the foregoing reasons, the petition for review is

12   DENIED.   As we have completed our review, the pending motion

13   for a stay of removal in this petition is DENIED as moot.

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




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