     15-1270
     Cui v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A205 038 495

                         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   13th day of September, two thousand sixteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            REENA RAGGI,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   HANG JIAN CUI,
14            Petitioner,
15
16                  v.                                               15-1270
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                       Daniel W. Worontzoff, The
24                                         Worontzoff Law Office, PLLC,
25                                         Flushing, New York.
26
27   FOR RESPONDENT:                       Benjamin C. Mizer, Principal
28                                         Deputy Assistant Attorney
29                                         General; Linda S. Werney,
30                                         Assistant Director; Theodore C.
31                                         Hirt, Senior Litigation Counsel,
1                                     Office of Immigration Litigation,
2                                     United States Department of
3                                     Justice, Washington, D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

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

8    DENIED.

9        Petitioner Hang Jian Cui, a native and citizen of the

10   People’s Republic of China, seeks review of a March 24, 2015,

11   decision of the BIA, affirming a January 28, 2013, decision of

12   an Immigration Judge (“IJ”) denying Cui’s application for

13   asylum, withholding of removal, and relief under the Convention

14   Against Torture (“CAT”).      In re Hang Jian Cui, No. A205 038 495

15   (B.I.A. Mar. 24, 2015), aff’g No. A205 038 495 (Immig. Ct. N.Y.

16   City Jan. 28, 2013).       We assume the parties’ familiarity with

17   the underlying facts and procedural history in this case.

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

19   the BIA’s and IJ’s decisions.         See Yun-Zui Guan v. Gonzales,

20   432 F.3d 391, 394 (2d Cir. 2005).       The standards of review are

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

22   Mukasey, 534 F.3d 162, 165 (2d Cir. 2008).

23       The   agency    may,    “[c]onsidering   the   totality   of   the

24   circumstances,” base a credibility finding on inconsistencies


                                       2
1    in an applicant’s statements and other record evidence “without

2    regard to whether” those inconsistencies go “to the heart of

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

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

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

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

7    Xiu Xia Lin, 534 F.3d at 167.            Further, “[a] petitioner must

8    do more than offer a plausible explanation for his inconsistent

9    statements to secure relief; he must demonstrate that a

10   reasonable    fact-finder    would       be   compelled   to   credit   his

11   testimony.”    Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)

12   (emphasis in original) (internal quotation marks and citations

13   omitted).      Substantial     evidence        supports    the   agency’s

14   determination that Cui was not credible.

15       The BIA reasonably relied on record inconsistencies among

16   Cui’s testimony, his written statement, and a letter from his

17   aunt regarding whether and how often the police contacted his

18   aunt after he left China.     See Xiu Xia Lin, 534 F.3d at 166 n.3

19   (“An inconsistency and an omission are . . . functionally

20   equivalent.”).    Further, Cui’s explanations regarding these

21   discrepancies were insufficient given that his explanations

22   themselves did not account for differences in the number of


                                          3
1    times his aunt was contacted and whether she was threatened with

2    a fine.    See Majidi, 430 F.3d at 80.     The BIA also reasonably

3    found that this inconsistency went “to the heart” of Cui’s

4    asylum claim because it was directly related to the surveillance

5    that Cui claimed to have fled and to the basis for his fear of

6    future persecution.    See Xian Tuan Ye v. DHS, 446 F.3d 289, 295

7    (2d Cir. 2006) (holding that the substantial evidence standard

8    is satisfied by a material inconsistency related to “an example

9    of the very persecution from which [an applicant] sought asylum”

10   (internal quotation marks omitted)).

11        The BIA also reasonably relied on Cui’s conflicting

12   testimony regarding why he came to the United States: to escape

13   persecution or to study.   Cui argues that this testimony shows

14   only that he had a “dual purpose” for coming to the United

15   States, not that he was inconsistent.      He contends that the IJ

16   erred in questioning his credibility based on “her perception

17   of   his   intent.”   However,   neither    the   BIA   nor   the   IJ

18   mischaracterized Cui’s statements: Cui stated several times

19   that the reason he came to the United States was to study and

20   it was not unreasonable for the agency to rely on those

21   statements in assessing Cui’s credibility, particularly where

22   the changing explanation called into question the extent of his


                                      4
1    fear of persecution.       Cf. Ramsameachire v. Ashcroft, 357 F.3d

2    169, 178 (2d Cir. 2004) (in addressing burden for well-founded

3    fear showing, explaining that applicant must have a subjective

4    fear, that is a “genuine” fear of persecution”).

5        Cui additionally challenges the IJ’s finding that it was

6    implausible for him to have obtained a student visa while under

7    government    surveillance.          However,    his    testimony   was

8    questionable.      Cui’s ability to obtain a student visa conformed

9    with his testimony that his situation was “not that serious,”

10   but conflicted with his claim that the Chinese government was

11   monitoring his actions across provinces in China.         See Wensheng

12   Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007); Siewe v.

13   Gonzales, 480 F.3d 160, 169 (2d Cir. 2007).

14       Viewing        the   record    under   the   “totality    of    the

15   circumstances,”      the   adverse   credibility   determination     is

16   supported     by     substantial     evidence    even    without    the

17   implausibility finding because the inconsistencies discussed

18   by the BIA were material to Cui’s claim.         See Xiu Xia Lin, 534

19   F.3d at 165-66; see Xian Tuan Ye, 446 F.3d at 295.        That finding

20   is dispositive of asylum, withholding of removal, and CAT relief

21   because all three claims are based on the same factual




                                          5
1    predicate.    See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

2    2006).

3        We decline to reach Cui’s challenges to the corroboration

4    findings because he did not raise them on appeal to the BIA.

5    Nor did the BIA address them.        As the Government argues, the

6    challenges   are   therefore   unexhausted   and   not   subject   to

7    judicial review.    See Lin Zhong v. U.S. Dep’t of Justice, 480

8    F.3d 104, 122 (2d Cir. 2007) (providing that judicially imposed

9    issue exhaustion is mandatory).

10       For the foregoing reasons, the petition for review is

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

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

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

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

15   in this petition is DENIED in accordance with Federal Rule of

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

17   34.1(b).

18                                  FOR THE COURT:
19                                  Catherine O’Hagan Wolfe, Clerk




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