         12-616
         Li v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A087 435 783
                          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 16th day of July, two thousand thirteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                PIERRE N. LEVAL,
 9                JOSÉ A. CABRANES,
10                     Circuit Judges.
11       _____________________________________
12
13       HUAZI LI,
14                      Petitioner,
15
16                      v.                                      12-616
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Joan Xie, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Cindy S. Ferrier,
27                                     Assistant Director; Tracie N. Jones,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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       Petitioner Huazi Li, a native and citizen of China,

 6   seeks review of a February 9, 2012, order of the BIA,

 7   affirming the August 25, 2010, decision of Immigration Judge

 8   (“IJ”) Barbara A. Nelson, which pretermitted, as untimely,

 9   her application for asylum and denied withholding of removal

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

11   re Huazi Li, No. A087 435 783 (B.I.A. Feb. 9, 2012), aff’g

12   No. A087 435 783 (Immig. Ct. New York City Aug. 25, 2010).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history in this case. The untimeliness ruling

15   is not challenged on this petition for review.

16       Under the circumstances of this case, we have reviewed

17   the decisions of both the IJ and the BIA.   See Yun-Zui Guan

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

19   The applicable standards of review are well-established.

20   See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

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

22   Li contests only the agency’s denial of withholding of

23   removal on appeal.   See Yueqing Zhang v. Gonzales, 426 F.3d

24   540, 541 n.1, 545 n.7 (2d Cir. 2005).

                                   2
 1       For applications such as Li’s, which are governed by

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

 3   on an applicant’s demeanor, the plausibility of her account,

 4   and inconsistencies in her statements, without regard to

 5   whether they go “to the heart of the applicant’s claim.”

 6   8 U.S.C. § 1158(b)(1)(B)(iii).     We “defer to an IJ’s

 7   credibility determination unless, from the totality of the

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

 9   could make such an adverse credibility ruling.”     Xiu Xia

10   Lin, 534 F.3d at 167.

11       Contrary to Li’s assertions, the agency reasonably

12   found that she was not credible due to the omission of her

13   alleged custodial beating from her written application and

14   testimony on direct examination.     See 8 U.S.C.

15   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166

16   (providing that, for purposes of analyzing a credibility

17   determination, “[a]n inconsistency and an omission are . . .

18   functionally equivalent”). Li recounted the alleged

19   custodial beating on cross-examination. While Li argues that

20   the IJ’s adverse credibility determination was improperly

21   based on a single omission, “an IJ may rely on any

22   inconsistency or omission in making an adverse credibility


                                  3
 1   determination as long as the ‘totality of the circumstances’

 2   establishes that an asylum applicant is not credible.”        See

 3   Xiu Xia Lin, 534 F.3d at 167 (emphasis in original).       As the

 4   agency reasonably noted, Li’s omission concerned the only

 5   physical harm that she allegedly suffered, and Li does not

 6   dispute the fundamental importance of this omission or argue

 7   that it was sufficiently explained.     Accordingly, we find

 8   that the agency’s adverse credibility determination is

 9   supported by substantial evidence.     See Xiu Xia Lin, 534

10   F.3d at 166.

11       Because the agency’s denial of withholding of removal

12   is supported on credibility grounds, we decline to consider

13   Li’s challenge to the agency’s alternative basis for

14   denial–that she failed to establish a nexus between any harm

15   she suffered and a protected ground.     See INS v. Bagamasbad,

16   429 U.S. 24, 25 (1976) (“As a general rule courts and

17   agencies are not required to make findings on issues the

18   decision of which is unnecessary to the results they

19   reach.”).

20       For the foregoing reasons, the petition for review is

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

22   removal that the Court previously granted in this petition


                                     4
1   is VACATED, and any pending motion for a stay of removal in

2   this petition is DISMISSED as moot.    Any pending request for

3   oral argument in this petition is DENIED in accordance with

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

5   Circuit Local Rule 34.1(b).

6                                 FOR THE COURT:
7                                 Catherine O’Hagan Wolfe, Clerk




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