         10-4763-ag
         Yu v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A099 661 325
                          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 10th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROBERT D. SACK,
 9                REENA RAGGI,
10                    Circuit Judges.
11       _______________________________________
12
13       LAN YU,
14                      Petitioner,
15
16                      v.                                      10-4763-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               John Z. Zhang, Esq., New York, New
24                                     York
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Lyle D. Jentzer, Senior
28                                     Litigation Counsel; John M. McAdams,
29                                     Jr., Attorney, Office of Immigration
30                                     Litigation, United States Department
31                                     of Justice, 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.

 5       Lan Yu, a native and citizen of China, seeks review of

 6   a November 8, 2010, decision of the BIA affirming the April

 7   30, 2008, decision of Immigration Judge (“IJ”) Barbara A.

 8   Nelson, which denied her application for asylum, withholding

 9   of removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Lan Yu, No. A099 661 325 (B.I.A. Nov. 8,

11   2010), aff’g No. A099 661 325 (Immig. Ct. N.Y. City Apr. 30,

12   2008).     We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   the decision of the IJ as supplemented by the BIA.       See Yan

16   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).      The

17   applicable standards of review are well-established.       See

18   8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

19   562 F.3d 510, 513 (2d Cir. 2009).

20       For asylum applications governed by the amendments made

21   to the Immigration and Nationality Act by the REAL ID Act of

22   2005, the agency may, considering the totality of the

23   circumstances, base a credibility finding on an asylum

                                     2
 1   applicant’s “demeanor, candor, or responsiveness,” the

 2   plausibility of his or her account, and inconsistencies in

 3   his or her statements, without regard to whether they go “to

 4   the heart of the applicant’s claim.”    See 8 U.S.C.

 5   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

 6   167 (2d Cir. 2008).   We will “defer to an IJ’s credibility

 7   determination unless, from the totality of the

 8   circumstances, it is plain that no reasonable fact-finder

 9   could make” such a ruling.   Xiu Xia Lin, 534 F.3d at 167.

10   In this case, the agency reasonably based its adverse

11   credibility determination on the inconsistencies between

12   Yu’s asylum application and her testimony regarding claimed

13   past persecution, and the insufficient corroboration of her

14   claim that she is a practicing Christian.

15       As the agency noted, there were discrepancies between

16   Yu’s asylum application and her testimony as to how she was

17   treated in detention, how many times she was forced to stand

18   outside in the cold, and the injuries she sustained from

19   being outside in the cold.   Yu also testified inconsistently

20   regarding the issuance of the household registration

21   document she presented as evidence.    The agency properly

22   relied on the cumulative effect of these inconsistencies to


                                   3
 1   support the adverse credibility finding.     See 8 U.S.C.

 2   § 1158(b)(1)(B)(iii) (providing that an IJ may base a

 3   credibility determination on “the totality of the

 4   circumstances, and all relevant factors”).    Moreover, the IJ

 5   provided Yu with multiple opportunities to reconcile her

 6   testimony and she failed to present reasonable explanations

 7   for the discrepancies.   See Majidi v. Gonzales, 430 F.3d 77,

 8   80-81 (2d Cir. 2005) (holding that agency need not credit an

 9   asylum applicant’s explanations for inconsistent testimony

10   unless those explanations would compel a reasonable fact

11   finder to do so).

12       Finally, Yu failed to provide evidence sufficient to

13   corroborate her claim that she is a practicing Christian,

14   either in China or in the United States, and thus reasonably

15   fears religious persecution in China.   When asked why Yu had

16   not provided any evidence to corroborate her claim that she

17   was a practicing Christian in China, such as a letter from

18   her husband, her parents, or any of the other members of her

19   house church who were present when she claims she was

20   arrested, she responded that such letters could not be

21   mailed from China because Chinese officials read all

22   international mail.   This explanation did not, however,


                                   4
 1   explain why the only evidence supporting her claim that she

 2   is a practicing Christian was a letter from a pastor at her

 3   American church indicating that she had joined the church

 4   only a month before.   The IJ noted that Yu had not asked her

 5   pastor to testify and failed to offer a persuasive

 6   explanation why.   Under these circumstances the agency

 7   reasonably relied on Yu’s failure to corroborate her claim

 8   that she is a practicing Christian to support its adverse

 9   credibility determination.     See Biao Yang v. Gonzales, 496

10   F.3d 268, 273 (2d Cir. 2007) (“[T]he absence of

11   corroboration in general makes an applicant unable to

12   rehabilitate testimony that has already been called into

13   question.”).

14       Therefore, in this case, the totality of the

15   circumstances support the agency’s adverse credibility

16   determination, and we will defer to that finding.     See

17   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

18   Furthermore, because the only evidence of a threat to Yu’s

19   life or freedom depended upon the credibility of her claims

20   of past persecution and fear of future persecution, the

21   adverse credibility determination in this case is

22   dispositive of her claims for asylum, withholding of

23   removal, and CAT relief.     See Paul v. Gonzales, 444 F.3d
                                     5
 1   148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of

 2   Justice, 426 F.3d 520, 523 (2d Cir. 2005).

 3       For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted in this petition

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

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

 8   oral argument in this petition is DENIED in accordance with

 9   Federal Rule of Appellate Procedure 34(a)(2), and Second

10   Circuit Local Rule 34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk
13
14




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