Han Xu v. Lynch
Opinion
SUMMARY ORDER
Petitioner Han Xu, a native and citizen of the People’s Republic of China, seeks review of a June 2, 2014 decision of the BIA affirming a May 30, 2013 decision of an Immigration Judge (“U”), denying Xu’s application for asylum, withholding of re *21 moval, and relief under the Convention Against Torture (“CAT”). In re Han Xu, No. A200 166 765 (B.I.A. June 2, 2014), aff'g No. A200 166 765 (Immig.Ct.N.Y.C. May 30, 2013). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed both the IJ’s and the BIA’s opinions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of review are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The agency may, “[cjonsidering the totality of the circumstances,” base a credibility finding on an asylum applicant’s demeanor, the plausibility of his account, and inconsistencies in his statements and other record evidence “without regard to whether” they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. Substantial evidence supports the agency’s determination that Xu was not credible.
The agency reasonably relied on Xu’s demeanor, noting that his rehearsed and stilted testimony on direct examination changed significantly upon cross-examination, when his testimony became confused and unresponsive. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir. 2005). The agency’s demeanor finding and the overall credibility determination are bolstered by record inconsistencies. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006); see also Xiu Xia Lin, 534 F.3d at 165-67. Xu made inconsistent statements regarding the reason he remained in the United States in 1999, Xu’s brother omitted from his letter threats (against Xu) that he had received in 1999, and Xu omitted from his April 2011 written statement his later assertion that officials had visited and threatened his brother on three occasions between January and April 2011. See Xiu Xia Lin, 534 F.3d at 166 n. 3 (“An inconsistency and an omission are ... functionally equivalent.”).
Having questioned Xu’s credibility, the agency reasonably relied further on his failure to provide credible evidence to rehabilitate his testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The IJ also did not err in rejecting as implausible Xu’s explanation for his failure to submit his family’s household registry. He asserted that China does not permit registries to leave the country; however, as the IJ noted based on her own experience, household registries from the People’s Republic of China are regularly submitted in immigration court in this country. See Xiu Xia Lin, 534 F.3d at 163, 167-68; Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (providing that the Court defers to an IJ’s finding unless it is based on “bald” speculation and noting that “speculation that inheres in inference is not ‘bald’ if the inference is made available to the factfinder by record facts, or even a single fact, viewed in the light of common sense and ordinary experience.”).
Given the demeanor, inconsistency, and corroboration findings, the agency’s adverse credibility determination is supported by substantial evidence, and is dispositive of Xu’s claims for asylum, withholding of removal, and CAT relief. See 8 U.S.C. § 1158(b)(l)(B)(iii); Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). Accordingly, we do not consider the parties’ arguments regarding the IJ’s alternative finding that Xu’s asylum application was untimely.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that *22 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 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
Reference
- Full Case Name
- HAN XU, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent
- Cited By
- 1 case
- Status
- Unpublished