         09-1779-ag
         Xing v. Holder
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A099 682 931
                            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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 21 st day of January, two thousand ten.
 5
 6       PRESENT:
 7                        GUIDO CALABRESI,
 8                        BARRINGTON D. PARKER,
 9                        RICHARD C. WESLEY,
10                                 Circuit Judges.
11
12       _______________________________________
13
14       KAI XING,
15                        Petitioner,
16
17                         v.                                   09-1779-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23       FOR PETITIONER:        Henry Zhang, Zhang & Associates, New
24                              York, New York.
25
26       FOR RESPONDENT:                 Tony West, Acting Assistant Attorney
27                                       General, Civil Division; Francis W.
28                                       Fraser, Senior Litigation Counsel;
29                                       W. Daniel Shieh, Trial Attorney,
30                                       United States Department of Justice,
31                                       Civil Division, 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, in part, and DISMISSED, in part.

5        Petitioner Kai Xing, a native and citizen of the

6    People’s Republic of China, seeks review of an April 10,

7    2009 order of the BIA affirming the January 23, 2007

8    decision of Immigration Judge (“IJ”) Thomas J. Mulligan

9    pretermitting his application for asylum, and denying his

10   application for withholding of removal and relief under the

11   Convention Against Torture (“CAT”).     In re Kai Xing, No.

12   A099 682 931 (B.I.A. Apr. 10, 2009), aff’g No. A099 682 931

13   (Immig. Ct. N.Y. City Jan. 23, 2007).     We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history in this case.

16       Under the circumstances of this case, this Court

17   reviews the decision of the IJ as supplemented by the BIA.

18   See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005);

19   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).

20   The applicable standards of review are well-established.

21   Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008);

22   Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

                                  2
1    For asylum applications governed by the REAL ID Act of 2005,

2    the agency may, in considering the totality of the

3    circumstances, base a credibility finding on an asylum

4    applicant’s demeanor, the plausibility of his or her

5    account, and inconsistencies in his or her statements,

6    without regard to whether they go “to the heart of the

7    applicant’s claim.”    8 U.S.C. § 1158(b)(1)(B)(iii).    This

8    Court “defer[s] to an IJ’s credibility determination unless,

9    from the totality of the circumstances, it is plain that no

10   reasonable fact-finder could make such an adverse

11   credibility ruling.”    Xiu Xia Lin v. Mukasey, 534 F.3d 162,

12   167 (2d Cir. 2008).

13   I.   Asylum

14        Title 8, Section 1158(a)(3) of the United States Code

15   provides that no court shall have jurisdiction to review the

16   agency’s finding that an asylum application was untimely

17   under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither

18   changed nor extraordinary circumstances excusing the

19   untimeliness under 8 U.S.C. § 1158(a)(2)(D).

20   Notwithstanding that provision, however, this Court retains

21   jurisdiction to review constitutional claims and questions

22   of law.   See 8 U.S.C. § 1252(a)(2)(D).   Because Xing


                                    3
1    challenges only purely factual determinations and the

2    agency’s exercise of discretion, we dismiss the petition for

3    review to the extent he attempts to challenge the agency’s

4    pretermission of his asylum application.     See 8 U.S.C.

5    § 1158(a)(3).

6    II.   Withholding of Removal

7          Substantial evidence supports the IJ’s adverse

8    credibility determination.     In finding Xing not credible,

9    the IJ found that: (1) his demeanor changed when he was

10   asked about “a critical date in the case” and that “the

11   nervousness he exhibited in response to this line of

12   questioning causes the court to question whether there was

13   ever even an arrest”; (2) his repeated testimony that he and

14   his mother were released on separate days was contradicted

15   by his asylum application and his mother’s statement; and

16   (3) his witness’s testimony that he knew Xing in China for

17   four years, yet was “not sure if the respondent ever had any

18   problems of any kind in China” was implausible.

19         These findings serve as substantial evidence for the

20   IJ’s adverse credibility determination. Xiu Xia Lin, 534

21   F.3d at 167; Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.

22   2006).   While Xing argues that he adequately explained the


                                     4
1    major inconsistency between his testimony and the

2    documentary evidence, no reasonable factfinder would have

3    been compelled to credit his explanation.     See Majidi v.

4    Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005); see also Siewe

5    v. Gonzales, 480 F.3d 160, 167 -168 (2d Cir. 2007).       Because

6    the adverse credibility finding is amply supported by the

7    record, the Court need not reach Xing’s remaining arguments

8    regarding his burden of proof.    Additionally, Xing fails to

9    sufficiently challenge the agency’s denial of CAT releif in

10   his brief to this Court.   See Yueqing Zhang v. Gonzales, 426

11   F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

12       For the foregoing reasons, the petition for review is

13   DENIED, in part, and DISMISSED, in part.     As we have

14   completed our review, any pending motion for a stay of

15   removal in this petition is DISMISSED as moot.     Any pending

16   request for oral argument in this petition is DENIED in

17   accordance with Federal Rule of Appellate Procedure

18   34(a)(2), and Second Circuit Local Rule 34(b).
19
20
21                               FOR THE COURT:
22                               Catherine O’Hagan Wolfe, Clerk
23
24
25
26                               By:_________________________
27
28
29
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