22-6330 

Lei v. Garland

BIA

Gordon-Uruakpa, IJ

A206 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. 

1 At a stated term of the United States Court of Appeals for the Second 

2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 11 3 th day of July, two thousand twenty4 four. 

5 

6 PRESENT: 

7 JOHN M. WALKER, JR.,

8 RICHARD J. SULLIVAN,

9 MYRNA PÉREZ,

10 Circuit Judges. 

11 _____________________________________

12

13 LI XUE LEI, 

14 Petitioner, 

15

16 v. 22-6330

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

20 Respondent. 

21 _____________________________________

22

23 FOR PETITIONER: Li Han, Esq., Flushing, NY. 
2 

1 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 

2 Attorney General; Daniel E. Goldman, Senior 

3 Litigation Counsel; Christina R. Zeidan, Trial 

4 Attorney; Charles J. Lautenbach, Law Clerk, 

5 Office of Immigration Litigation, United 

6 States Department of Justice, Washington, 

7 DC.

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

9 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 

10 DECREED that the petition for review is DENIED. 

11 Petitioner Li Xue Lei, a native and citizen of the People’s Republic of China, 

12 seeks review of a June 21, 2022 decision of the BIA affirming a December 21, 2018

13 decision of an Immigration Judge (“IJ”) denying his application for asylum, 

14 withholding of removal, and relief under the Convention Against Torture 

15 (“CAT”). In re Li Xue Lei, No. A 206 283 811 (B.I.A. June 21, 2022), aff’g No. A 206 

16 283 811 (Immigr. Ct. N.Y.C. Dec. 21, 2018). We assume the parties’ familiarity 

17 with the underlying facts and procedural history. 

18 We have reviewed the IJ’s decision as supplemented by the BIA. See Chen 

19 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s “legal 

20 conclusions de novo, and its factual findings, including adverse credibility 

21 determinations, under the substantial evidence standard.” Y.C. v. Holder, 741 
3 

1 F.3d 324, 332 (2d Cir. 2013) (internal quotation marks omitted). “[T]he 

2 administrative findings of fact are conclusive unless any reasonable adjudicator 

3 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). 

4 “Considering the totality of the circumstances, and all relevant factors, a 

5 trier of fact may base a credibility determination on the demeanor, candor, or 

6 responsiveness of the applicant . . . , the inherent plausibility of the 

7 applicant’s . . . account, the consistency between the applicant’s . . . written and 

8 oral statements . . . , the internal consistency of each such statement, . . . and any 

9 inaccuracies or falsehoods in such statements, without regard to whether an 

10 inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, 

11 or any other relevant factor.” Id. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 

12 credibility determination unless, from the totality of the circumstances, it is plain 

13 that no reasonable fact-finder could make such an adverse credibility ruling.” 

14 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao v. 

15 Sessions, 891 F.3d 67, 76 (2d Cir. 2018). 

16 Lei’s challenge to the agency’s adverse credibility determination here is so 

17 cursory that he has arguably waived this dispositive issue. See Debique v. Garland, 

18 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any claims not 
4 

1 adequately presented in an appellant’s brief, and an appellant’s failure to make 

2 legal or factual arguments constitutes abandonment.” (internal quotation marks 

3 omitted)). 

4 Even setting aside Lei’s arguable waiver of this argument, substantial 

5 evidence supports the agency’s determination that Lei did not testify credibly. 

6 Lei’s original and amended asylum application forms contain a significant 

7 discrepancy regarding the date when he learned that his wife was pregnant with 

8 their second child and the date of the child’s birth. At his hearing, Lei never 

9 testified that he was mistaken about the timeline, but instead repeatedly claimed 

10 that the timeline in the written statements was correct. It was only after he 

11 realized that his version of events was impossible that he asserted he did not know 

12 “how to count.” Certified Admin. Record at 84. The IJ reasonably found that 

13 this explanation was not compelling. Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 

14 2005) (“A petitioner must do more than offer a plausible explanation for his 

15 inconsistent statements to secure relief; he must demonstrate that a reasonable 

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

17 omitted)). 

18 Contrary to Lei’s position, this discrepancy is not trivial, as his wife’s second
5 

1 pregnancy was central to his claim that he was persecuted for violating and 

2 opposing China’s family-planning policy. In any event, the agency is entitled to 

3 rely on testimony-related discrepancies that do not go to the heart of an applicant’s 

4 claims so long as the totality of the circumstances supports the adverse credibility 

5 determination—which is the case here given Lei’s repeated failure to explain his 

6 testimony after the implausibility was pointed out to him. See Xiu Xia Lin, 534 

7 F.3d at 167–68; see also Zhang v. U.S. I.N.S, 386 F.3d 66, 73 (2d Cir. 2004) (“A fact8 finder who assesses testimony together with witness demeanor is in the best 

9 position to discern, often at a glance, whether a question that may appear poorly 

10 worded on a printed page was, in fact, confusing or well understood by those who 

11 heard it; whether a witness who hesitated in a response was nevertheless 

12 attempting truthfully to recount what he recalled of key events or struggling to 

13 remember the lines of a carefully crafted ‘script’; and whether inconsistent 

14 responses are the product of innocent error or intentional falsehood.”), overruled 

15 on other grounds by Shi Liang Lin v. U.S. Dep’t of Just., 494 F.3d 296 (2d Cir. 2007). 

16 In sum, given the implausibility of Lei’s testimony and his failure to advance 

17 a compelling explanation for the timeline he gave, substantial evidence supports 

18 the adverse credibility determination. See Xiu Xia Lin, 534 F.3d at 167–68. 
6 

1 Because Lei’s claims for asylum, withholding of removal, and CAT relief relied on 

2 the same facts, the adverse credibility determination was dispositive of all three 

3 forms of relief. See Hong Fei Gao, 891 F.3d at 76. 

4 For the foregoing reasons, the petition for review is DENIED. All pending

5 motions and applications are DENIED and stays VACATED.

6 FOR THE COURT: 

7 Catherine O’Hagan Wolfe, 

8 Clerk of Court