20-438 Xu v. Garland BIA Gordon-Uruakpa, IJ A205 780 175

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 for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 9th day of March, two thousand twenty-two. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 ROBERT D. SACK, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 FENGMING XU 14 Petitioner, 15 16 v. 20-438 17 NAC 18 MERRICK B. GARLAND, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Robert J. Adinolfi, Esq., New York, 24 NY. 25 26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 27 Attorney General, Civil Division; 28 Zoe J. Heller, Senior Litigation 29 Counsel; Katherine A. Smith, Trial 30 Attorney, Office of Immigration 1 Litigation, United States Department 2 of Justice, Washington, DC.

3 UPON DUE CONSIDERATION of this petition for review of a Board

4 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

5 ADJUDGED, AND DECREED that the petition for review is DENIED.

6 Petitioner Fengming Xu, a native and citizen of the People’s

7 Republic of China, seeks review of a January 7, 2020, decision of

8 the BIA affirming an April 19, 2018, decision of an Immigration

9 Judge (“IJ”) denying her application for asylum, withholding of

10 removal, and protection under the Convention Against Torture

11 (“CAT”). In re Fengming Xu, No. A205 780 175 (B.I.A. Jan. 7,

12 2020), aff’g No. A205 780 175 (Immig. Ct. N.Y. City Apr. 19, 2018).

13 We assume the parties’ familiarity with the underlying facts and

14 procedural history.

15 We have considered both the IJ’s and BIA’s opinions “for the

16 sake of completeness.” Wangchuck v. Dep’t of Homeland Security,

17

(2d Cir. 2006). We review adverse credibility

18 determinations for substantial evidence, see Hong Fei Gao v.

19 Sessions,

(2d Cir. 2018), and treat the agency’s

20 findings of fact as “conclusive unless any reasonable adjudicator

21 would be compelled to conclude to the contrary,” 8 U.S.C.

22 § 1252(b)(4)(B). “Considering the totality of the circumstances,

23 and all relevant factors, a trier of fact may base a credibility

2 1 determination on the demeanor, candor, or responsiveness of the

2 applicant . . . , the inherent plausibility of the applicant’s .

3 . . account,” and inconsistencies within and between an applicant’s

4 statements “without regard to whether” they go “to the heart of

5 the applicant’s claim.”

(b)(1)(B)(iii). “We defer

6 . . . to an IJ’s credibility determination unless, from the

7 totality of the circumstances, it is plain that no reasonable fact-

8 finder could make such an adverse credibility ruling.” Xiu Xia

9 Lin v. Mukasey,

(2d Cir. 2008); accord Hong Fei

10 Gao,

. Substantial evidence supports the agency’s

11 adverse credibility determination.

12 First, the agency reasonably relied on inconsistencies. See

13

(b)(1)(B)(iii). Xu gave different years for a

14 forced abortion and had difficulty giving coherent testimony about

15 how a doctor determined she was pregnant. Dated photographs of

16 her and her children were inconsistent with her allegations

17 regarding her children’s ages and her testimony that she did not

18 see them between 2007 and 2011, and her documentary evidence was

19 inconsistent regarding her own age. The IJ did not err in relying

20 on the cumulative effect of these inconsistencies. See Xiu Xia

21 Lin,

. Moreover, contrary to Xu’s arguments, she

22 was asked to clarify her testimony, and the IJ was not required to

23 seek an explanation before relying on the inconsistency between

3 1 her photographic evidence and her testimony. See Ming Shi Xue v.

2 BIA,

(2d Cir. 2006).

3 The agency also reasonably relied on implausibility in Xu’s

4 claim. See

(b)(1)(B)(iii); Wensheng Yan v. Mukasey,

5

, 66–67 (2d Cir. 2007). Xu testified that a local

6 doctor confirmed her pregnancy and was required to report it to

7 family planning authorities, but then testified that, after

8 initially fleeing the area, she returned while pregnant because it

9 would be safer. Xu also testified that the authorities informed

10 her husband’s family that she would be sterilized, rather than

11 telling her while she was in the hospital giving birth, and then

12 inconsistently stated that she learned of the sterilization

13 warning while in hiding. Given this context, we cannot locate

14 error in the IJ’s conclusion that these portions of the claim were

15 implausible. See Wensheng Yan, 509 F.3d at 66–67 (explaining that

16 we uphold an implausibility finding absent a “definite and firm

17 conviction that a mistake has been committed” (internal quotation

18 marks omitted)).

19 Finally, we defer to the IJ’s conclusion that Xu’s demeanor

20 undermined her credibility. See Jin Chen v. U.S. Dep’t of Justice,

21

(2d Cir. 2005) (“[T]he IJ’s ability to observe

22 the witness’s demeanor places her in the best position to evaluate

23 whether apparent problems in the witness’s testimony suggest a

4 1 lack of credibility or, rather, can be attributed to an innocent

2 cause such as difficulty understanding the question.”). Moreover,

3 the record reflects that Xu’s testimony was often vague and not

4 responsive.

5 Given the inconsistency, implausibility, and demeanor

6 findings, the agency’s adverse credibility determination is

7 supported by substantial evidence. See 8 U.S.C.

8 § 1158(b)(1)(B)(iii). That determination was dispositive of

9 asylum, withholding of removal, and CAT relief because all

10 three claims were based on the same factual predicate. See

11 Paul v. Gonzales,

, 156–57 (2d Cir. 2006).

12 For the foregoing reasons, the petition for review is

13 DENIED. All pending motions and applications are DENIED and

14 stays VACATED.

15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court

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