17-2116 Wu v. Sessions BIA Zagzoug, IJ A200 179 364 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.

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 7th day of November, two thousand eighteen. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 RICHARD C. WESLEY, 10 DENNY CHIN, 11 Circuit Judges. 12 _____________________________________ 13 14 XINYI WU, 15 Petitioner, 16 17 v. 17-2116 18 NAC 19 JEFFERSON B. SESSIONS III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Mike P. Gao, Flushing, NY. 25 26 FOR RESPONDENT: Jody Hunt, Assistant Attorney 27 General; Stephen J. Flynn, 28 Assistant Director; James A. 29 Hurley, Arthur L. Rabin, Trial 1 Attorneys, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a

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

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

9 is DENIED.

10 Petitioner Xinyi Wu, a native and citizen of the People’s

11 Republic of China, seeks review of a June 13, 2017, decision

12 of the BIA affirming an October 18, 2016, decision of an

13 Immigration Judge (“IJ”) denying Wu’s application for asylum,

14 withholding of removal, and relief under the Convention

15 Against Torture (“CAT”). In re Xinyi Wu, No. A 200 179 364

16 (B.I.A. June 13, 2017), aff’g No. A 200 179 364 (Immig. Ct.

17 N.Y. City Oct. 18, 2016). We assume the parties’ familiarity

18 with the underlying facts and procedural history in this case.

19 In lieu of filing a brief, the Government moves for

20 summary denial of Wu’s petition for review. Summary denial

21 is warranted only if a petition is frivolous. Pillay v. INS,

22

(2d Cir. 1995). Because the petition is not

23 frivolous and because Wu has filed his merits brief, we deny

2 1 the Government’s petition and treat the Government’s motion

2 as a response to Wu’s brief.

3 We have reviewed the IJ’s decision as modified by the

4 BIA and address only the adverse credibility determination.

5 See Xue Hong Yang v. U.S. Dep’t of Justice,

, 522

6 (2d Cir. 2005). “We defer . . . to an IJ’s credibility

7 determination unless . . . it is plain that no reasonable

8 fact-finder could make such an adverse credibility ruling.”

9 Xiu Xia Lin v. Mukasey,

(2d Cir. 2008).

10 Substantial evidence supports the agency’s determination that

11 Wu was not credible.

12 First, the IJ reasonably relied on an inconsistency in

13 Wu’s description of the letter he provided to the Chinese

14 authorities. See

(b)(1)(B)(iii). Wu

15 testified that he filed an original, signed complaint letter

16 with the Chinese authorities but could not clarify how he

17 also filed that same original letter with the immigration

18 court. This inconsistency, which called into question

19 whether Wu had ever complained to the authorities and

20 undermined the reliability of his evidence, provided

21 substantial support for the IJ’s adverse credibility ruling. 3 1 See Xian Tuan Ye v. Dep’t of Homeland Sec.,

, 295

2 (2d Cir. 2006) (per curium) (holding that material

3 inconsistency relating to central aspect of asylum claim

4 provided substantial evidence for adverse credibility

5 determination). Wu’s explanation that he did not remember

6 whether he sent an original to Chinese authorities did not

7 resolve the problem. See Majidi v. Gonzales,

,

8 80 (2d Cir. 2005) (“A petitioner must do more than offer a

9 plausible explanation for his inconsistent statements to

10 secure relief; he must demonstrate that a reasonable fact-

11 finder would be compelled to credit his testimony.” (internal

12 quotation marks omitted)).

13 Second, the IJ reasonably relied on an inconsistency

14 between Wu’s testimony and a letter from two alleged

15 coworkers. See

(b)(1)(B)(iii); see also Xiu

16 Xia Lin,

(upholding IJ’s reliance on omissions

17 and inconsistencies in letters in reaching adverse

18 credibility determination). Wu testified that the two

19 colleagues who accompanied him to the 2010 protest were also

20 arrested but still worked for the company from which he was

21 fired. But the coworkers’ letter states that they were all 4 1 fired. This inconsistency, particularly when combined with

2 Wu’s erroneous testimony about the gender of one of the

3 letter’s authors, casts doubt on his claim and is indicative

4 of fabricated evidence. The IJ was not required to credit

5 Wu’s uncorroborated explanation that his coworkers simply

6 continued working despite their termination, particularly

7 given the statement in the letter that they were dismissed

8 “ruthlessly” from their jobs. See also Wensheng Yan v.

9 Mukasey,

(2d Cir. 2007) (holding that, so

10 long as IJ’s finding is “tethered to record evidence, and

11 there is nothing else in the record from which a firm

12 conviction of error could properly be derived,” we will not

13 disturb that finding).

14 Finally, the agency’s demeanor finding, to which we

15 defer, bolsters the IJ’s adverse credibility determination.

16 See

(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t

17 of Justice,

(2d Cir. 2006). Because the IJ

18 is in the best position to evaluate testimony, we defer to

19 the IJ’s reliance on the contrast between Wu’s “confident and

20 fluid” testimony during direct examination and his “hesitant,

21 contradictory and unpersuasive” answers to questions during 5 1 cross-examination. See Li Hua Lin,

(“We can

2 be still more confident in our review of observations about

3 an applicant’s demeanor where, as here, they are supported by

4 specific examples of inconsistent testimony.”).

5 Given the multiple inconsistencies between Wu’s

6 testimony and record evidence, as well as the IJ’s demeanor

7 finding, the totality of the circumstances supports the

8 agency’s adverse credibility determination. The adverse

9 credibility determination is dispositive of asylum,

10 withholding of removal, and CAT relief because all three

11 claims rely on Wu’s credibility. See Paul v. Gonzales, 444

, 156-57 (2d Cir. 2006).

13 For the foregoing reasons, the petition for review is

14 DENIED. As we have completed our review, the Government’s

15 motion for summary denial and Wu’s motion for a stay of

16 removal are DISMISSED as moot. Any pending request for oral

17 argument in this petition is DENIED in accordance with Federal

18 Rule of Appellate Procedure 34(a)(2), and Second Circuit

19 Local Rule 34.1(b).

20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, 22 Clerk of Court 6