22-6330 Lei v. Garland BIA Gordon

- Uruakpa , IJ A 206 283 811 

### 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 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 1 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on the 11 th da y of July , two thousand twenty 3 four
. 4 5 PRESENT: 6 JOHN M. WALKER, JR., 7 RICHARD J. SULLIVAN, 8 MYRNA PÉREZ, 9 Circuit Judges. 10

_____________________________________ 11 12 LI XUE LEI , 13 Petitioner , 14 15
v. 22 - 6330 16 NAC 17 MERRICK B. GARLAND , UNITED 18 STATES ATTORNEY GENERAL, 19 Respondent
. 20

_____________________________________ 21 22 FOR PETITIONER : Li Han, Esq., Flushing, NY

. 232 FOR RESPONDENT: Brian Boynton , Principal Deputy Assistant 1 Attorney General ; Daniel E. Goldman , Senior 2 Litigation Counsel; Christina R. Zeidan , Trial 3 Attorney ; Charles J. Lautenbach, Law Clerk , 4 Office of Immigration Litigation, United 5 States Department of Justice, Washington, 6 D C. 7 UPON DUE CONSIDERATION of this petition for review of a Board of 8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 9 DECREED that the petitio n for review is DENIED

. 10
Petitioner Li Xue Lei , a native and citizen of the People’s Republic of China , 11
seeks review of a June 21, 2022 decision of the BIA affirming a December 21, 2018 12 decision of an Immigration Judge (“IJ”) denying his application for asylum, 13 withholding of removal, and relief under the Convention Against Torture 14 (“CAT”)

. In re Li Xue Lei , No. A 206 283 811 (B.I.A. June 21, 2022 ), aff’g No. A 206 15
283 811 (Immig r . Ct. N.Y.C

. Dec. 21, 2018 ). We assume the parties’ familiarity 16 with the underlying facts and procedural history. 17 We have reviewed the IJ’s decision as supplemented by the BIA. See Chen 18
v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s “ legal 19
conclusions de novo , and its factual findings, including adverse credibility 20 determinations, under the substantial evidence standard.” Y.C. v. Holder , 741 213 F.3d 324, 332 (2d Cir. 2013) (internal quotation marks omitted) . “[ T]he 1 administrative findings of fact are conclusive unless any reasonable adjudicator 2 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). 3 “Considering the totality of the circumstances, and all relevant factors, a 4 trier of fact may base a credibility determination on the demeanor, candor, or 5 responsiveness of the applicant . . . , the inherent plausibility of the 6 applicant’s

. . . account, the consistency between the applicant’s .

. . written and 7
oral statements .

. . , the internal consistency of each such statement, .

. . and any 8 inaccuracies or falsehoods in such statements, without regard to whether an 9 inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, 10 or any other relevant factor.” Id. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 11 credibility determination unless, from the totality of the circumstances, it is plain 12
that no reasonable fact

- finder could make such an adverse credibility ruling.” 13 Xiu Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao v. 14
Sessions , 891 F.3d 67, 76 (2d Cir. 2018). 15 Lei’s challenge to the agency’s adverse credibility determination here is so 16 cursory that he has arguably waived this dispositive issue. See Debique v. Garland , 17 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any claims not 184 adequately presented in an appellant’s brief, and an appellant’s failure to make 1 legal or factual arguments constitutes abandonment.” ( internal quotation marks 2 omitted))

. 3 Even setting aside Lei’s arguable waiver of this argument , substantial 4 evidence supports the agency’s determination that Lei did not testify credibly. 5 Lei’s original and amended asylum application forms contain a significant 6 discrepancy regarding the date when he learned that his wife was pregnant with 7
their second child and the date of the child’s birth. At his hearing, Lei never 8 testified that he was mistaken about the timeline, but instead repeatedly claimed 9
that the timeline in the written statements was correct . It was only after he 10 realized that his version of events was impossible that he asserted he did not know 11

“ how to count. ” Certified Admin. Record at 84. The IJ reasonably found that 12 this explanation was not compelling. Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 13 2005) ( “A petitioner must do more than offer a plausible explanation for his 14 inconsistent statements to secure relief; he must demonstrate that a reasonable 15
fact

- finder would be compelled to credit his testimony.” ( internal quotation marks 16 omitted) )

. 17 Contrary to L ei ’s position, this discrepancy is not trivial , as his wife’s second 185 pregnancy was central to his claim that he was persecuted for violating and 1 opposing China’s family

- planning policy

. In any event, t he agency is entitled to 2 rely on testimony

- related discrepancies that do not go to the heart of an applicant’s 3 claims so long as the totality of the circumstances supports the adverse credibility 4
determination

— which is the case here given Lei’s repeated failure to explain his 5 testimony after the implausibility was pointed out to him. See Xiu Xia Lin , 534 6
F.3d at 167

– 68; see also Zhang v. U.S. I .N.S , 386 F.3d 66, 73 (2d Cir. 2004) (“A fact

7 finder who assesses testimony together with witness demeanor is in the best 8 position to discern, often at a glance, whether a question that may appear poorly 9 worded on a printed page was, in fact, confusing or well understood by those who 10 heard it; whether a witness who hesitated in a response was nevertheless 11 attempting truthfully to recount what he recalled of key events or struggling to 12 remember the lines of a carefully crafted ‘script’; and whether inconsistent 13 responses are the product of innocent error or intentional falsehood

. ”), overruled 14 on other grounds by Shi Liang Lin v. U.S. Dep’t of Just. , 494 F.3d 296 (2d Cir. 2007). 15 In sum, given the implausibility of Lei’s testimony and hi s failure to advance 16 a compelling explanation for the timeline he gave, substantial evidence supports 17 the adverse credibility determination. See Xiu Xia Lin , 534 F.3d at 167

– 68. 186 Because Lei’s claims for asylum, withholding of removal, and CAT relief relied on 1 the same facts, the adverse credibility determination was dispositive of all three 2
forms of relief. See Hong Fei Gao , 891 F.3d at 76. 3 For the foregoing reasons, the petition for review is DENIED

. All pending 4 motions and applications are DENIED and stays VACATED. 5
FOR THE COURT: 6 Catherine O ’ Hagan Wolfe , 7 Clerk of Court 8