18-381 An v. Barr BIA Poczter, IJ A206 058 648 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 7th day of February, two thousand twenty.

PRESENT: ROBERT A. KATZMANN, Chief Judge, JON O. NEWMAN, SUSAN L. CARNEY, Circuit Judges. _____________________________________

ZHI XIN AN, Petitioner,

v. 18-381 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Theodore N. Cox, New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Ernesto H. Molina, Jr., Deputy Director, Nancy N. Safavi, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. 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.

Petitioner Zhi Xin An, a native and citizen of the

People’s Republic of China, seeks review of a January 16,

2018, decision of the BIA affirming an April 7, 2017, decision

of an Immigration Judge (“IJ”) denying his application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Zhi Xin An, No.

A206 058 648 (B.I.A. Jan. 16, 2018), aff’g No. A206 058 648

(Immig. Ct. N.Y. City Apr. 7, 2017). 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 Security,

(2d Cir. 2006). The applicable standards of

review are well established. See

(b)(4)(B);

Hong Fei Gao v. Sessions,

(2d Cir. 2018).

“Considering the totality of the circumstances, and all

relevant factors, a trier of fact may base a credibility

2 determination on . . . the consistency between the applicant’s

or witness’s written and oral statements . . . , the internal

consistency of each such statement, the consistency of such

statements with other evidence of record . . . , and any

inaccuracies or falsehoods in such statements, without regard

to whether an inconsistency, inaccuracy, or falsehood goes to

the heart of the applicant’s claim, or any other relevant

factor.”

(b)(1)(B)(iii). “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 v. Mukasey,

(2d Cir. 2008); accord

Hong Fei Gao,

. Substantial evidence supports

the agency’s determination that An was not credible.

As an initial matter, An only challenges the agency’s

adverse credibility determination as it pertains to his fear

of future persecution on account of his activities in the

United States. Accordingly, he has waived any challenge to

the agency’s conclusion that he was not credible as to his

claim of past persecution. See Yueqing Zhang v. Gonzales,

, 541 n.1, 545 n.7 (2d Cir. 2005) (“Issues not

sufficiently argued in the briefs are considered waived and

3 normally will not be addressed on appeal.” (quoting Norton v.

Sam’s Club,

(2d Cir. 1998))).

The agency reasonably relied on inconsistencies within

An’s statements and between his statements and documentary

evidence regarding his involvement in the United States with

the magazine Beijing Spring, and when police first approached

his parents and threatened them. Each of these findings is

supported by the record. See

(b)(1)(B)(iii);

see also Xiu Xia Lin,

. An’s testimony

between the 2015 hearing and the 2017 hearing was inconsistent

regarding the extent of his political activities in the United

States. In 2015, he testified that he was an assistant editor

of the magazine Beijing Spring. But in 2017, at the hearing

specifically to address future persecution based on his

activities in the United States, An did not mention his

position as editor until asked about it on cross examination.

The agency did not err in relying on this omission because it

was a significant and specific fact that went to the heart of

An’s fear of future persecution. See Hong Fei Gao, 891 F.3d

at 78–79 (weight given to an omission depends, in part, on

whether “facts are ones that a credible petitioner would

reasonably have been expected to disclose under the relevant

4 circumstances”). The IJ was not compelled to credit An’s

explanation that he was nervous and forgot to mention this

position. See Ming Zhang v. Holder,

(2d

Cir. 2009) (“We again reject the notion that a petitioner’s

claim that [h]e was nervous and distracted during the credible

fear interview automatically undermines or negates its

reliability as a source of h[is] statements.”); Majidi v.

Gonzales,

(2d Cir. 2005) (“A petitioner must

do more than offer a plausible explanation for his

inconsistent statements to secure relief; he must demonstrate

that a reasonable fact-finder would be compelled to credit

his testimony.” (internal quotation marks omitted)).

Nor did the agency err in relying on the discrepancy

between An’s testimony and his mother’s letter regarding when

the Chinese police approached and threatened his parents. An

testified in March 2015 that Chinese authorities had learned

of his activities in the United States and threatened his

parents. But his mother’s letter, submitted after the

initial hearing, states that she and An’s father learned of

An’s activities in the United States when the police

questioned and threatened them in September 2015, i.e., after

the hearing at which An testified to the threats. The agency

5 did not err in relying on this discrepancy because it created

an inconsistency in the timeline and the omission was central

to An’s fear of future persecution. See Hong Fei Gao,

.

Additionally, given the inconsistency with his parents’

letters, An did not rehabilitate his questionable testimony

with reliable corroborating evidence regarding his fear of

future persecution upon return to China. See Biao Yang v.

Gonzales,

(2d Cir. 2007) (“An 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.”). Accordingly, given the

inconsistencies and the lack of reliable corroboration, the

adverse credibility determination is supported by substantial

evidence. See Xiu Xia Lin,

. That

determination is dispositive of asylum, withholding of

removal, and CAT relief because all three claims are based on

the same factual predicate. See Paul v. Gonzales,

(2d Cir. 2006). Because this adverse credibility

determination is dispositive, we do not reach the agency’s

alternative bases for its decision. See INS v. Bagamasbad,

6

(1976) (“As a general rule courts and agencies

are not required to make findings on issues the decision of

which is unnecessary to the results they reach.”).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

7