14-4627 

Bai v. Lynch 

BIA 

Christensen, IJ 

A200 179 025

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 

15th day of August, two thousand sixteen. 

PRESENT: 

GUIDO CALABRESI,

REENA RAGGI, 

CHRISTOPHER F. DRONEY,

Circuit Judges. 

_____________________________________ 

XUEJIN BAI, 

 Petitioner, 

v. 14-4627 

 NAC 

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Dehai Zhang, Esq., Flushing, New York. 

FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

Assistant Attorney General; John S. 

Hogan, Senior Litigation Counsel; 

Nicole N. Murley, Trial Attorney, 

Office of Immigration Litigation, 

United States Department of Justice, 

Washington, D.C. 
2

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 Xuejin Bai, a native and citizen of the People’s 

Republic of China, seeks review of a November 21, 2014 decision 

of the BIA affirming a July 18, 2013 decision of an Immigration 

Judge (“IJ”) denying Bai’s application for asylum, withholding 

of removal, and relief under the Convention Against Torture 

(“CAT”). See In re Xuejin Bai, No. A200 179 025 (B.I.A. Nov. 

21, 2014), aff’g No. A200 179 025 (Immig. Ct. N.Y.C. July 18, 

2013). Under the circumstances of this case, we review both 

the IJ and the BIA opinion “for the sake of completeness,” 

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 

2006), applying well-established standards of review, see 8 

U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 

513 (2d Cir. 2009). In doing so, we assume the parties’ 

familiarity with the underlying facts and procedural history 

in this case. 

For asylum applications such as Bai’s, governed by the REAL 

ID Act of 2005, the agency may, considering “the totality of 

the circumstances,” base an adverse credibility determination 

on an asylum applicant’s “demeanor, candor, or responsiveness,” 
3

the plausibility of her account, and inconsistencies in her 

statements, “without regard to whether” those inconsistencies 

go “to the heart of the applicant’s claim.” 8 U.S.C. § 

1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 

165 (2d Cir. 2008). Under the “substantial evidence” standard 

of review, “[w]e 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, 534 F.3d at 167. 

The agency here reasonably relied on inconsistencies, 

omissions, and Bai’s demeanor in finding her not credible. 

First, the record supports the agency’s conclusion that Bai’s 

testimony regarding the number of passports she had obtained 

was inconsistent. Although Bai initially testified that she 

had only had one passport in her life — the one that she used 

to travel to the United States — the record indicates that she 

had at least three. She conceded during her testimony that, 

in 2009, she obtained a passport bearing a false name and her 

picture, which she used to travel successfully to Japan after 

she was forced to have an abortion. Further, the passport she 

used to travel to the United States stated that it was a 

replacement, thus indicating that Bai previously had yet 

another passport. Insofar as Bai attempts to minimize her 
4

testimony regarding the fraudulent passport she used to travel 

to Japan, she did not raise that argument before the BIA and, 

therefore, we decline to consider it here. See Lin Zhong v. 

U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007) 

(explaining that when “applicant for asylum or withholding of 

removal has failed to exhaust an issue before the BIA, and that 

issue is, therefore, not addressed in a reasoned BIA decision,” 

we are, “by virtue of the ‘final order’ requirement of 

§ 1252(d)(1), usually unable to review the argument”). 

Second, the record also supports the agency’s conclusion 

that Bai omitted from her asylum application any mention of the 

six months she lived and worked in Japan in 2009. Bai testified 

that in June 2009, approximately two months after she was forced 

to have an abortion, she traveled to Japan and lived and worked 

there for six months before being deported to China. Despite 

completing an asylum application in 2011 that required her to 

list her jobs and residences for the past five years and 

providing with her application a written statement detailing 

what happened after her forced abortion, Bai failed to include 

in either document the fact that she lived and worked in Japan 

from approximately June 2009 to December 2009. The IJ was 

permitted to rely on this omission in assessing Bai’s 

credibility, see Xiu Xia Lin, 534 F.3d at 166 n.3 (explaining 
5

that, for purposes of assessing credibility, “[a]n 

inconsistency and an omission are . . . functionally 

equivalent”), particularly given that Bai’s only explanation 

for this omission was that she felt “that if [she] include[d] 

it, it’s not good” because she also went to Japan to apply for 

asylum, Certified Administrative Record (“CAR”) 83; see Majidi 

v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (stating that 

petitioner “must do more than offer a plausible explanation for 

[her] inconsistent statements to secure relief; [s]he must 

demonstrate that a reasonable fact-finder would be compelled 

to credit [her] testimony”). 

In urging otherwise, Bai relies on a pre-REAL ID Act case 

to argue that her testimony regarding her time in Japan could 

not form the basis for the agency’s credibility determination 

because it had no bearing on her claim that she suffered 

persecution in China. See Secaida-Rosales v. INS, 331 F.3d 

297, 308 (2d Cir. 2003) (stating that adverse credibility 

determination cannot rest on inconsistencies that “do not 

concern the basis for the claim of asylum or withholding, but 

rather matters collateral or ancillary to the claim”). The 

argument fails because the REAL ID Act governs Bai’s 

application, and permits an IJ to “rely on any inconsistency 

or omission in making an adverse credibility determination as 
6

long as the ‘totality of the circumstances’ establishes that 

an asylum applicant is not credible.” Xiu Xia Lin, 534 F.3d 

at 167 (emphasis in original) (quoting 8 U.S.C. 

§ 1158(b)(1)(B)(iii)) (concluding that REAL ID Act abrogated 

circuit precedent, including Secaida-Rosales, which held that 

IJ may not base adverse credibility determination on 

inconsistencies that are collateral to applicant’s claim). 

Third, the agency reasonably concluded that Bai testified 

inconsistently about her divorce. Although Bai initially 

testified that she was in China when she divorced her husband, 

she subsequently testified that the divorce took place in 

December 2009, when she was in Japan. When asked to explain 

this inconsistency, Bai stated that she had been asked “too many 

questions,” and ”got confused.” CAR 84. The agency was not 

compelled to credit this explanation. See Majidi, 430 F.3d at 

80.1

 

Fourth, the IJ also expressed doubts about Bai’s demeanor 

— a finding that we accord deference given that an IJ is in the 

 

1 Bai further argues in her brief to this court that she was 

confused as to whether the government was asking about the 

beginning or end of the divorce process. She did not, however, 

provide that explanation when asked about the inconsistency 

before the IJ, see Kulhawik v. Holder, 571 F.3d 296, 298 (2d 

Cir. 2009) (“An attorney’s unsworn statements in a brief are 

not evidence.”), and, even if she had provided such an 

explanation at that time, the agency would not have been 

compelled to credit it, see Majidi, 430 F.3d at 80.
7

best position to observe an applicant’s demeanor while 

testifying. See Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 73-74 

(2d Cir. 2004), overruled on other grounds by Shi Liang Lin v. 

U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007). The IJ here 

observed that Bai was “evasive” when asked about the number of 

passports she has had in her life. CAR 48. This finding is 

strengthened by Bai’s inconsistent responses to that question. 

See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d 

Cir. 2006) (“We can be still more confident in our review of 

observations about an applicant’s demeanor where, as here, they 

are supported by specific examples of inconsistent 

testimony.”). 

 Finally, the agency reasonably found that Bai failed to 

rehabilitate her testimony with reliable documents. See Biao 

Yang v. Gonzales, 496 F.3d 268, 273 (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.”). In so concluding, the 

IJ declined to afford significant evidentiary weight to (1) a 

letter from Bai’s mother because she was unavailable for 

cross-examination; and (2) an unauthenticated hospital record 

that did not establish that Bai’s 2009 abortion was involuntary, 
8

see Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006) (noting 

that the State Department China Profile of Asylum Cases states 

“so-called ‘abortion certificates’ are most likely doctors’ 

excuse-letters for workers who undergo abortion voluntarily”). 

We defer to the agency’s determination of the weight to be 

afforded to these documents. See Y.C. v. Holder, 741 F.3d 324, 

332 (2d Cir. 2013) (deferring to agency’s determination to give 

letter “very little evidentiary weight” where letter was 

unsworn and submitted by an interested witness). 

 Because substantial evidence supports the agency’s 

findings that Bai provided inconsistent testimony, omitted 

facts from her asylum application, and was evasive during her 

testimony, we identify no basis to disturb the agency’s adverse 

credibility determination, see 8 U.S.C. § 1158(b)(1)(B)(iii); 

Xiu Xia Lin, 534 F.3d at 167, which is dispositive of Bai’s 

claims for asylum, withholding of removal, and CAT relief, see 

Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).2

 For the foregoing reasons, the petition for review is 

DENIED. As we have completed our review, any stay of removal 

that the Court previously granted in this petition is VACATED, 

 

2 Because the IJ’s credibility determination was an independent 

basis on which to deny Bai’s requested relief, we need not 

consider whether the agency erred in concluding that Bai failed 

to establish her identity. See Cao He Lin v. U.S. Dep’t of 

Justice, 428 F.3d 391, 401 (2d Cir. 2005). 
9

and any pending motion for a stay of removal in this petition 

is DISMISSED as moot. Any pending request for oral argument 

in this petition is DENIED in accordance with Federal Rule of 

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

34.1(b). 

 FOR THE COURT: 

 Catherine O=Hagan Wolfe, Clerk