    12-3540
    Yan v. Holder
                                                                                  BIA
                                                                             Cheng, IJ
                                                                          A089 929 373
                     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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 5th day of September, two thousand fourteen.

    PRESENT:

             JOHN M. WALKER, JR.,
             REENA RAGGI,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    YONG JIN YAN,
             Petitioner,

                    v.                                     12-3540
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Zhou Wang, New York, NY.

    FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
                                  General; Russell J.E. Verby, Senior
                                  Litigation Counsel; Katharine Clark,
                                  Trial Attorney, Office of Immigration
                                  Litigation, United States Department
                                  of Justice, Washington, D.C.
     UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

     Yong Jin Yan, a native and citizen of the People’s

Republic of China, seeks review of a August 20, 2012 decision

of   the   BIA   affirming   the    January   18,   2011     decision    of

Immigration      Judge   (“IJ”)    Mary   Cheng,    which     denied    his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).           In re Yong Jin

Yan, No. A089 929 373 (B.I.A. Aug. 20, 2012), aff’g No. A089

929 373 (Immig. Ct. N.Y. City Jan. 18, 2011).               We assume the

parties’ familiarity with the underlying facts and procedural

history in this case.

     Under the circumstances of this case, we have reviewed

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

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

applicable standards of review are well-established.               See

8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

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

     For    applications     such    as   Yan’s,    governed     by      the

amendments made to the Immigration and Nationality Act by the

REAL ID Act of 2005, the agency may, “considering the totality

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of the circumstances,” base a credibility finding on the

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

plausibility     of     his    account,    and    inconsistencies    in   his

statements, without regard to whether they go “to the heart of

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

Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per

curiam).      We “defer to an IJ’s credibility determination

unless, from the totality of the circumstances, it is plain

that no reasonable fact-finder could make” such a ruling. Xiu

Xia Lin, 534 F.3d at 167.

      Here, the IJ reasonably based the adverse credibility

determination      on    inconsistencies          between   Yan’s    hearing

testimony and credible fear interview, as well as on Yan’s

omission of information from his asylum application and during

his   credible    fear        interview.         These   include:   (1)   the

discrepancy between Yan’s testimony that he was arrested

twice, and his statement during his credible fear interview

that he was arrested only once; (2) the discrepancy between

Yan’s testimony that he was released from detention in 2007

after his mother paid a fine, and the omission of any such

fine in his mother’s letter to the court; (3) Yan’s failure to

mention his 2007 arrest, detention, and beating in either his


                                      3
asylum application or during his credible fear interview; and

(4) Yan’s failure to mention in his asylum application that

his 2008 release from detention for practicing Falun Gong was

precipitated by his disclosure of the identity of a fellow

practitioner and his agreement regularly to report to the

police.   See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);

Xiu Xia Lin, 534 F.3d at 167 (providing that IJ may support

adverse credibility determination with “any inconsistency or

omission”).      Moreover,   the    IJ   reasonably    rejected   Yan’s

explanations for these inconsistencies, specifically that he

was   scared,   forgot   minor   details,   or   did   not   think   the

information relevant, because he gave detailed testimony on

some issues but not others.        See Majidi v. Gonzales, 430 F.3d

77, 80-81 (2d Cir. 2005).

      The IJ also reasonably required proof that Yan practiced

Falun Gong in the United States, given that Yan testified that

he practiced with a group and with coworkers and that they

could have provided affidavits.          See Lizu Guan v. INS, 453

F.3d 129, 141 (2d Cir. 2006). Despite Yan’s assertion that he

was unaware that he should obtain affidavits, in light of his

acquisition of affidavits in support of other aspects of his

claim, the IJ reasonably rejected his explanation.                   See


                                    4
Majidi, 430 F.3d at 80-81.     As to Yan’s demeanor, we defer to

the IJ’s finding that evasive testimony adversely affected

Yan’s credibility, as that finding was evident in Yan’s

changing    explanations     for       the   absence   of   co-worker

corroborating affidavits.      See Li Hua Lin v. U.S. Dep’t of

Justice, 453 F.3d 99, 109 (2d Cir. 2006).

    Given these inconsistencies and omissions, Yan’s evasive

demeanor, and the lack of reasonably available corroborating

evidence, the totality of the circumstances supports the

agency’s adverse credibility determination.            See 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.           As the

only evidence of a threat to Yan’s life or freedom, or

likelihood of torture, depended upon his credibility, the

adverse credibility determination in this case necessarily

precludes success on his claims for withholding of removal and

CAT relief.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

2006).

    For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

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

is DISMISSED as moot.      Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of
                                   5
Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                      FOR THE COURT:
                      Catherine O’Hagan Wolfe, Clerk of Court




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