15-4137 Xu v. Sessions BIA Vomacka, IJ A205 033 972

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 TO 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 15th day of February, two thousand eighteen.

PRESENT: ROSEMARY S. POOLER, REENA RAGGI, PETER W. HALL, Circuit Judges. _____________________________________

YINGAI XU, Petitioner,

v. 15-4137 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Yingai Xu, Monterey Park, C.A.

FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Julie M. Iversen, Senior Litigation Counsel; Sergio Sarkany, 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

DISMISSED IN PART and DENIED IN PART.

Petitioner Yingai Xu, a native and citizen of China, seeks

review of a December 11, 2015, decision of the BIA affirming

a June 19, 2014, decision of an Immigration Judge (“IJ”) denying

Xu’s application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Yingai Xu,

No. A205 033 972 (B.I.A. Dec. 11, 2015), aff’g No. A205 033 972

(Immig. Ct. N.Y. City June 19, 2014). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

We have reviewed the IJ’s decision as supplemented and

modified by the BIA (i.e., including the BIA’s additional

corroboration analysis, but excluding the IJ’s inconsistency

finding regarding Xu’s pants). See Xue Hong Yang v. U.S. Dep’t

of Justice,

(2d Cir. 2005); Yan Chen v.

Gonzales,

(2d Cir. 2005). The applicable

standards of review are well established. See

(b)(4)(B); Xiu Xia Lin v. Mukasey,

(2d Cir. 2008). We have liberally construed Xu’s pro se brief

2 as raising the strongest arguments it suggests. Triestman v.

Fed. Bureau of Prisons,

(2d Cir. 2006).

I. Asylum

An asylum application must be filed within one year of an

applicant’s arrival in the United States, absent changed or

extraordinary circumstances.

(a)(2)(B), (D). We

generally lack jurisdiction to review the denial of asylum as

untimely; however, we have jurisdiction to review

“constitutional claims or questions of law raised upon a

petition for review.”

(a)(3), 1252(a)(2)(D).

Xu’s argument that the agency should have credited her account

of her arrival in the United States and her explanation for the

lack of any travel documents does not raise a constitutional

claim or question of law. Credibility findings are factual and

not subject to review in this context. Cf. Xiu Xia Lin,

. We therefore dismiss Xu’s petition as to her asylum claim

for lack of jurisdiction.

II. Withholding of Removal and CAT Relief

The governing REAL ID Act credibility standard provides

that the agency may, “[c]onsidering the totality of the

circumstances,” base a credibility finding on an applicant’s

“demeanor, candor, or responsiveness,” the “plausibility of

3 [her] account,” and inconsistencies in her statements and other

record evidence “without regard to whether” those

inconsistencies “go[] to the heart of the applicant’s claim.”

(b)(1)(B)(iii); Xiu Xia Lin,

.

“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 an adverse credibility

ruling.” Xiu Xia Lin,

. Further, “[a] petitioner

must do more than offer a plausible explanation for h[er]

inconsistent statements to secure relief; [s]he must

demonstrate that a reasonable fact-finder would be compelled

to credit h[er] testimony.” Majidi v. Gonzales,

(2d Cir. 2005) (internal quotation marks omitted). For the

reasons that follow, we conclude that substantial evidence

supported the agency’s determination that Xu was not credible.

First, the agency reasonably based the credibility

determination on the inconsistency between Xu’s testimony and

her asylum application regarding how she discovered her

pregnancy. See Xiu Xia Lin,

. Xu stated

in her application that she became sick and vomited after

breakfast one day, and then went to a nearby clinic where a

doctor confirmed her pregnancy. Xu testified, however, that she

4 did not go to see a doctor. Instead, she testified that she

suspected she was pregnant when she missed her period and then

confirmed her pregnancy with a home pregnancy test from the

pharmacy. When confronted with the discrepancy, Xu explained

that she also saw a doctor at the pharmacy. But the IJ was not

compelled to accept this explanation because it did not resolve

Xu’s inconsistent testimony, and it was inconsistent with Xu’s

prior testimony that there was only a pharmacist at the pharmacy

who might have suspected she was pregnant because she bought

the home pregnancy test. See Majidi,

.

Second, the agency reasonably relied on the implausibility

of Xu’s testimony about the Korean alias on her asylum

application (Kim, Hae Lee). See Xiu Xia Lin,

. Xu was asked whether she ever used the last name “Kim,”

and she responded that she did not think so. When asked again,

Xu stated that she could not recall. Finally, when asked if Kim

was the name on the Korean passport she had used to enter the

United States, Xu responded: “Yes, I think it’s possible.”

Certified Administrative Record (“CAR”) at 177-78. The agency

reasonably found this testimony implausible because Xu had

worked as a Korean language tutor and should have been able to

remember the identity she assumed while traveling through

5 various countries in Europe and attempting to enter the United

States. See Xiu Xia Lin,

.

Third, the agency reasonably based the credibility

determination on the IJ’s observations of Xu’s demeanor. See

. “[D]emeanor is paradigmatically the sort

of evidence that a fact-finder is best positioned to evaluate,”

Li Zu Guan v. INS,

(2d Cir. 2006), and we

therefore “give particular deference to credibility

determinations that are based on the adjudicator’s observation

of the applicant’s demeanor,” Jin Chen v. U.S. Dep’t of Justice,

(2d Cir. 2005). Here, the IJ found that Xu

gave many hesitant or self-contradictory answers, seemed to be

reluctant to make definite statements, had trouble remembering

basic facts and details about her case, and often had to be

prompted. As one example, the IJ noted that he had to question

Xu repeatedly before she identified the documents that she

claimed were in her former attorney’s possession. This finding

is supported by the record, and we therefore give it deference.

See Xiu Xia Lin,

; Jin Chen,

.

Finally, the IJ agency reasonably relied on Xu’s lack of

corroborating evidence in assessing her credibility. See Biao

Yang v. Gonzales,

(2d Cir. 2007) (“An

6 applicant’s failure to corroborate his or her testimony may bear

on credibility, because the absence of corroboration in general

makes an applicant unable to rehabilitate testimony that has

already been called into question.”). The IJ correctly observed

that Xu did not submit any corroborating evidence beyond

identification documents, and Xu does not claim that the agency

erred in finding this evidence insufficient to rehabilitate her

credibility. Instead, she contends that the IJ erred by failing

to provide notice of her need to submit specific pieces of

corroborating evidence. However, Xu’s argument conflates

corroboration in the adverse credibility context with the

denial of a credible claim for failure to submit reasonably

available corroborating evidence. See Petitioner’s Br. at 14

(citing

(b)(1)(B)(ii)); compare Biao Yang,

(explaining “the absence of corroboration in general

makes an applicant unable to rehabilitate testimony that has

already been called into question”) with

(b)(1)(B)(ii)(explaining corroboration may not be

necessary “if the applicant satisfies the trier of fact that

the applicant’s testimony is credible,” among other

requirements), 1252(b)(4). Although Xu testified that she had

a fine notice and a fine receipt (but did not submit them because

7 her former attorney in Los Angeles had them) and a letter from

her parents corroborating her forced abortion (but did not

submit it because she did not think it was evidence), the agency

did not deny relief because Xu did not submit this evidence;

it merely considered the absence of this evidence in assessing

Xu’s credibility. In any event, the IJ was not obligated to list

each document required to establish a successful claim because

“[a]n alien applying for relief or protection from removal has

the burden of proof.” 8 U.S.C § 1229a(c)(4)(A); cf. Chuilu Liu

v. Holder,

(2d Cir. 2009) (“While [the Court]

ha[s] sometimes remanded a case if the IJ failed to explain his

reliance on a lack of corroborating evidence, the alien bears

the ultimate burden of introducing such evidence without

prompting from the IJ.”).

Given the agency’s foregoing demeanor and inconsistency

findings, and its reasonable consideration of Xu’s

corroborating evidence, the totality of the circumstances

supports the adverse credibility determination. See Xiu Xia

Lin,

. A reasonable adjudicator would not be

compelled to conclude otherwise.

The credibility finding

is dispositive of withholding of removal and CAT relief because

both claims are based on the same factual predicate. See Paul

8 v. Gonzales,

(2d Cir. 2006). We therefore

deny the petition as to withholding of removal and CAT relief.

For the foregoing reasons, the petition for review is

DISMISSED IN PART and DENIED IN PART. As we have completed our

review, any stay of removal that the Court previously granted

in this petition is VACATED. 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).

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

9