     15-319
     Qiao v. Lynch
                                                                                       BIA
                                                                                Schoppert, IJ
                                                                               A200 930 239
                          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 sixteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            DENNIS JACOBS,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   QIANFENG QIAO,
14            Petitioner,
15
16                   v.                                              15-319
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                       Zhen Liang Li, Law Office of Zhen
24                                         Liang Li, New York, New York.
25
26   FOR RESPONDENT:                       Benjamin C. Mizer, Principal
27                                         Deputy Assistant Attorney
28                                         General; Jamie M. Dowd, Senior
29                                         Litigation Counsel; Andrew N.
30                                         O’Malley, Trial Attorney, Office
31                                         of Immigration Litigation, United
32                                         States Department of Justice,
33                                         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 is

4    DENIED.

5          Petitioner Qianfeng Qiao, a native and citizen of China,

6    seeks review of a January 6, 2015, decision of the BIA, affirming

7    an April 2, 2013, decision of an Immigration Judge (“IJ”)

8    denying Qiao’s application for asylum, withholding of removal,

9    and relief under the Convention Against Torture (“CAT”).          In

10   re Qianfeng Qiao, No. A200 930 239 (B.I.A. Jan. 6, 2015), aff’g

11   No. A200 930 239 (Immig. Ct. N.Y. City Apr. 2, 2013).     We assume

12   the   parties’   familiarity   with   the   underlying   facts   and

13   procedural history in this case.

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

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

16   432 F.3d 391, 394 (2d Cir. 2005) (“Where, as here, the BIA agrees

17   with the IJ’s conclusion that a petitioner is not credible and,

18   without rejecting any of the IJ’s grounds for decision,

19   emphasizes particular aspects of that decision, we will review

20   both the BIA’s and IJ’s opinions . . . including the portions

21   not explicitly discussed by the BIA.”).          The standards of

22   review are well established.     8 U.S.C. § 1252(b)(4); Xiu Xia

23   Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008).

                                     2
1         The   agency    may,    “[c]onsidering         the     totality      of   the

2    circumstances,”      base    a   credibility       finding      on   an   asylum

3    applicant’s    “demeanor,        candor,      or    responsiveness,”           the

4    plausibility    of   his     account,      and    inconsistencies         in   his

5    statements    and    other    record       evidence      “without    regard     to

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

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

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

9    credibility determination unless . . . it is plain that no

10   reasonable fact-finder could make such an adverse credibility

11   ruling.”   Xiu Xia Lin, 534 F.3d at 167.                 Substantial evidence

12   supports the agency’s determination that Qiao was not credible.

13        The agency reasonably relied on inconsistencies among

14   Qiao’s testimony, his written statement, and letters from his

15   father and uncle regarding whether he went to the hospital for

16   treatment of his injuries and who accompanied him.                   See Xiu Xia

17   Lin, 534 F.3d at 166-67.          Qiao’s written statement makes no

18   mention of a hospital visit, yet he testified that both his uncle

19   and parents brought him to the hospital, a statement which

20   conflicted with letters from his uncle and father.                   See Xiu Xia

21   Lin, 534 F.3d at 166 n.3 (“An inconsistency and an omission are

22   . . . functionally equivalent.”).             When asked to explain these

23   discrepancies, Qiao reiterated that both his uncle and parents

                                            3
1    accompanied him to the hospital and stated that he did not know

2    why his father and uncle would state otherwise.          The agency was

3    not compelled to credit this explanation because Qiao did not

4    explain the inconsistencies.         See Majidi v. Gonzales, 430 F.3d

5    77, 80 (2d Cir. 2005) (“A petitioner must do more than offer

6    a plausible explanation for his inconsistent statements to

7    secure   relief;   he    must    demonstrate      that   a    reasonable

8    fact-finder would be compelled to credit his testimony.”

9    (internal quotation marks omitted)).

10       The agency also reasonably relied on Qiao’s inconsistent

11   testimony regarding when he began attending church in the United

12   States—he testified that he began attending services in the

13   United States in May 2010, but his statement asserts that he

14   did not enter the United States until August 2010.                 Qiao’s

15   witness’s testimony raises a similar problem; she testified

16   that she met Qiao in the United States in June 2010, but this

17   was two months before his purported arrival date.                  The IJ

18   reasonably   relied     on   these       inconsistencies.      8    U.S.C.

19   § 1158(b)(1)(B)(iii)         (listing       inconsistencies        between

20   applicant and witness as grounds for an adverse credibility

21   determination).    The IJ was not compelled to accept Qiao’s

22   explanations that these were mistakes, particularly given the



                                          4
 1   additional inconsistencies in dates and in his witness’s

 2   testimony.    See Majidi, 430 F.3d at 80.

 3       Finally,       the    agency    reasonably    relied   on    additional

 4   inconsistencies          among    Qiao’s   testimony,      his    witness’s

 5   testimony, and his documentary evidence.            Qiao’s testimony, a

 6   letter from his church, and his witness’s affidavit all

 7   identified the witness as a church elder.                       The witness

 8   testified otherwise.             The inconsistency is clear from the

9    record and unexplained; and the witness’s response that she just

10   signed what she was told further impugned her credibility.              Id.

11       The inconsistencies between Qiao’s testimony and the

12   documentary evidence also support the agency’s conclusion that

13   Qiao failed to rehabilitate his credibility with reliable

14   corroborating evidence.           See Biao Yang v. Gonzales, 496 F.3d

15   268, 273 (2d Cir. 2007); see also Siewe v. Gonzales, 480 F.3d

16   160, 170 (2d Cir. 2007).

17       Given the multiple inconsistencies within and among the

18   testimony    and    documentary       evidence,   substantial      evidence

19   supports the agency’s adverse credibility determination.                See

20   Xiu Xia Lin, 534 F.3d at 165-66.           That finding is dispositive

21   of asylum, withholding of removal, and CAT relief because all

22   three claims are based on the same factual predicate.              See Paul

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

                                            5
1    we do not reach the Government’s argument that Qiao failed to

2    exhaust his CAT claim.    See also INS v. Bagamasbad, 429 U.S.

3    24, 25 (1976).

4        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

11   34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk




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