         13-3252
         Ye v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A200 944 855
                            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 22nd day of June, two thousand fifteen.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                     Chief Judge,
 9                DENNY CHIN,
10                RAYMOND J. LOHIER, JR.,
11                     Circuit Judges.
12       _____________________________________
13
14       XIANGQING YE,
15                Petitioner,
16
17                         v.                                   13-3252
18                                                              NAC
19       LORETTA E. LYNCH, UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.*
22       _____________________________________
23
24
25       FOR PETITIONER:               Jan Potemkin, New York, New York.
26

                       *
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Loretta E. Lynch is automatically
             substituted for former Attorney General Eric H. Holder, Jr.
 1   FOR RESPONDENT:         Stuart F. Delery, Assistant Attorney
 2                           General; Kiley Kane, Senior
 3                           Litigation Counsel; James A. Hurley,
 4                           Trial Attorney, Office of
 5                           Immigration Litigation, United
 6                           States Department of Justice,
 7                           Washington, D.C.
 8
 9       UPON DUE CONSIDERATION of this petition for review of a

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

11   ORDERED, ADJUDGED, AND DECREED that the petition for review

12   is DENIED.

13       Petitioner Xiangqing Ye, a native and citizen of China,

14   seeks review of a July 26, 2013 order of the BIA, affirming

15   the December 12, 2011 decision of an Immigration Judge

16   (“IJ”), which denied asylum, withholding of removal, and

17   relief under the Convention Against Torture (“CAT”).      In re

18   Xiangqing Ye, No.   A200 944 855 (B.I.A. July 26, 2013),

19   aff’g No. A200 944 855 (Immig. Ct. N.Y. City Dec. 12, 2011).

20   We assume the parties’ familiarity with the underlying facts

21   and procedural history in this case.

22       Under the circumstances of this case, we review the

23   decisions of both the IJ and the BIA.   Yun-Zui Guan v.

24   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).

25   The applicable standards of review are well established.

26   See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.


                                   2
 1   Holder, 562 F.3d 510, 513 (2d Cir. 2009); Xiu Xia Lin v.

 2   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).

 3       For applications such as Ye’s, which are governed by

 4   the REAL ID Act, the agency may base a credibility finding

 5   on an applicant’s demeanor, the plausibility of his account,

 6   and inconsistencies in his statements, 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); see Matter of J-Y-C-, 24 I. &

 9   N. Dec. 260, 265 (B.I.A. 2007).     “We defer therefore to an

10   IJ’s credibility determination unless, from the totality of

11   the circumstances, it is plain that no reasonable

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

13   Xiu Xia Lin, 534 F.3d at 167.

14       Ye contends that the credibility determination was

15   improperly based on the omission from his application that

16   the police had attempted to arrest him at home after he was

17   released from custody.     Although Ye argues that this

18   omission is not an inconsistency, for purposes of analyzing

19   a credibility determination, “[a]n inconsistency and an

20   omission are . . . functionally equivalent.”     Xiu Xia Lin,

21   534 F.3d at 166 n.3.     Ye does not challenge the agency’s

22   finding that his explanations for this omission were

23   themselves inconsistent and further buttressed the

                                     3
 1   credibility finding.   Nor does he challenge the agency’s

 2   finding that this omission went to the heart of his claim.

 3   See Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111-12 (2d Cir.

 4   2005) (per curiam) (upholding adverse credibility

 5   determination where an omission was not “incidental or

 6   ancillary” but rather concerned an “essential factual

 7   allegation underlying petitioner’s asylum claim”).       He also

 8   does not challenge the agency’s finding that his

 9   corroborating evidence failed to rehabilitate his

10   credibility because his father’s letter did not mention the

11   police’s visit and his sister was unaware of the incident.

12   See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)

13   (per curiam) (recognizing that an applicant’s failure to

14   corroborate her testimony may bear on credibility, either

15   because the absence of particular corroborating evidence is

16   viewed as suspicious, or because the absence of

17   corroboration makes an applicant unable to rehabilitate

18   testimony that has already been called into question).       He

19   has therefore failed to demonstrate “that no reasonable

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

21   Xiu Xia Lin, 534 F.3d at 167.       As a result, the agency did

22   not err in denying asylum, withholding of removal, and CAT

23   relief because all three claims shared the same factual

                                     4
 1   predicate.     See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

 2   2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

 3   523 (2d Cir. 2005).

 4       Ye’s contention that he demonstrated a well-founded

 5   fear of future persecution based on his status as a

 6   practicing Catholic, regardless of whether he credibly

 7   established past persecution, is misplaced.      See Paul, 444

 8   F.3d at 156.     In Paul, we held that the agency’s

 9   determination that an applicant was not credible as to

10   claims of past persecution did not preclude the applicant

11   from demonstrating a well-founded fear of future persecution

12   based on objective evidence, where the applicant had

13   independently established that he was, in fact, a practicing

14   Christian.     444 F.3d at 155-57.   Unlike Paul, however, all

15   of Ye’s claims were dependent upon his credibility because

16   the IJ did not separately find that he was a practicing

17   Catholic.

18       For the foregoing reasons, the petition for review is

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

20   removal that the Court previously granted in this petition

21   is VACATED, and any pending motion for a stay of removal in

22   this petition is DENIED as moot.     Any pending request for

23   oral argument in this petition is DENIED in accordance with
                                     5
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5
6




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