     14-2060
     Xu v. Lynch
                                                                                       BIA
                                                                                 Zagzoug, IJ
                                                                               A200 166 765
                        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   22nd day of January, two thousand sixteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            REENA RAGGI,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   HAN XU,
14                 Petitioner,
15
16                 v.                                                14-2060
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                    Zhong Yue Zhang, Flushing, New York.
25
26   FOR RESPONDENT:                     Joyce R. Branda, Acting Assistant
27                                       Attorney General; Derek C. Julius,
1                                  Senior Litigation Counsel; Judith R.
2                                  O’Sullivan, Trial Attorney, Office
3                                  of Immigration Litigation, U.S.
4                                  Department of Justice, Washington,
5                                  D.C.
6
7        UPON DUE CONSIDERATION of this petition for review of a

8    Board of Immigration Appeals (“BIA”) decision, it is hereby

9    ORDERED, ADJUDGED, AND DECREED that the petition for review is

10   DENIED.

11       Petitioner Han Xu, a native and citizen of the People’s

12   Republic of China, seeks review of a June 2, 2014 decision of

13   the BIA affirming a May 30, 2013 decision of an Immigration Judge

14   (“IJ”), denying Xu’s application for asylum, withholding of

15   removal, and relief under the Convention Against Torture

16   (“CAT”).   In re Han Xu, No. A200 166 765 (B.I.A. June 2, 2014),

17   aff’g No. A200 166 765 (Immig. Ct. N.Y.C. May 30, 2013).        We

18   assume the parties’ familiarity with the underlying facts and

19   procedural history in this case.

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

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

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

23   2006).     The   applicable    standards   of   review   are   well

                                      2
1    established.       8 U.S.C.    § 1252(b)(4)(B);        Xiu   Xia   Lin   v.

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

3    “[c]onsidering the totality of the circumstances,” base a

4    credibility finding on an asylum applicant’s demeanor, the

5    plausibility   of   his     account,       and   inconsistencies   in    his

6    statements   and    other    record       evidence   “without   regard    to

7    whether” they go “to the heart of the applicant’s claim.”

8    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

9    Substantial evidence supports the agency’s determination that

10   Xu was not credible.

11       The agency reasonably relied on Xu’s demeanor, noting that

12   his rehearsed and stilted testimony on direct examination

13   changed   significantly       upon        cross-examination,    when     his

14   testimony became confused and unresponsive.                  See 8 U.S.C.

15   § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d 77,

16   81 n.1 (2d Cir. 2005).       The agency’s demeanor finding and the

17   overall credibility determination are bolstered by record

18   inconsistencies.     See Li Hua Lin v. U.S. Dep’t of Justice, 453

19   F.3d 99, 109 (2d Cir. 2006); see also Xiu Xia Lin, 534 F.3d at

20   165-67.   Xu made inconsistent statements regarding the reason

                                           3
1    he remained in the United States in 1999, Xu’s brother omitted

2    from his letter threats (against Xu) that he had received in

3    1999, and Xu omitted from his April 2011 written statement his

4    later assertion that officials had visited and threatened his

5    brother on three occasions between January and April 2011.   See

6    Xiu Xia Lin, 534 F.3d at 166 n.3 (“An inconsistency and an

7    omission are . . . functionally equivalent.”).

8        Having questioned Xu’s credibility, the agency reasonably

9    relied further on his failure to provide credible evidence to

10   rehabilitate his testimony.    See Biao Yang v. Gonzales, 496

11   F.3d 268, 273 (2d Cir. 2007).      The IJ also did not err in

12   rejecting as implausible Xu’s explanation for his failure to

13   submit his family’s household registry.   He asserted that China

14   does not permit registries to leave the country; however, as

15   the IJ noted based on her own experience, household registries

16   from the People’s Republic of China are regularly submitted in

17   immigration court in this country.   See Xiu Xia Lin, 534 F.3d

18   at 163, 167-68; Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir.

19   2007) (providing that the Court defers to an IJ’s finding unless

20   it is based on “bald” speculation and noting that “speculation

                                    4
1    that inheres in inference is not ‘bald’ if the inference is made

2    available to the factfinder by record facts, or even a single

3    fact, viewed in the light of common sense and ordinary

4    experience.”).

5        Given   the   demeanor,   inconsistency,   and   corroboration

6    findings, the agency’s adverse credibility determination is

7    supported by substantial evidence, and is dispositive of Xu’s

8    claims for asylum, withholding of removal, and CAT relief.    See

9    8 U.S.C. § 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F.3d 148,

10   156-57 (2d Cir. 2006).    Accordingly, we do not consider the

11   parties’ arguments regarding the IJ’s alternative finding that

12   Xu’s asylum application was untimely.

13       For the foregoing reasons, the petition for review is

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

15   that the Court previously granted in this petition is VACATED,

16   and any pending motion for a stay of removal in this petition

17   is DISMISSED as moot.    Any pending request for oral argument

18

19

20

                                     5
1   in this petition is DENIED in accordance with Federal Rule of

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

3   34.1(b).

4                               FOR THE COURT:
5                               Catherine O=Hagan Wolfe, Clerk




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