13-2819 Dong v. Holder BIA Wright, IJ A200 905 363 

### 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** 1 **Appeals for the Second Circuit, held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of New** 3 **York, on the 28 th** **day of October, two thousand fourteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **GERARD E. LYNCH,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **XING LE DONG,** 13 14 Petitioner**,** 15 16 **v. 13-2819** 17 **NAC** 18 19 **ERIC H. HOLDER, JR., UNITED** 20 **STATES ATTORNEY GENERAL,** 21 22 Respondent**.** 23 24

**_____________________________________** 25 26 **FOR PETITIONER: Thomas V. Massucci, New York, New** 27 **York.** 281 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 2 **General; Cindy S. Ferrier, Assistant** 3 **Director; Kimberly A. Burdge, Trial** 4 **Attorney, Office of Immigration** 5 **Litigation, United States Department** 6 **of Justice, Washington D.C.** 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Xing Le Dong, a native and citizen of China, seeks 12 review of a June 28, 2013, decision of the BIA affirming the 13 November 22, 2011, decision of an Immigration Judge (“IJ”), 14 which denied his application for asylum, withholding of 15 removal, and relief pursuant to the Convention Against 16 Torture (“CAT”). In re Xing Le Dong, No. A200 905 363 17 (B.I.A. June 28, 2013),aff’gNo. A200 905 363 (Immig. Ct. 18 N.Y. City Nov. 22, 2011). We assume the parties’ 19 familiarity with the underlying facts and procedural history 20 in this case. 21 Under the circumstances of this case, we have reviewed 22 the IJ’s decision as modified and supplemented by the BIA. 23 See Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 24 522 (2d Cir. 2005). The applicable standards of review are 25

2well established. See8 U.S.C. § 1252(b)(4)(B); Yanqin Weng 1 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 2 We conclude that the inconsistencies cited by the 3 agency provide substantial evidence to support the adverse 4 credibility determination. For asylum applications like 5 Dong’s, governed by the REAL ID Act of 2005, the agency may, 6 “[c]onsidering the totality of the circumstances,” base a 7 credibility finding on an asylum applicant’s demeanor, the 8 plausibility of his account, and inconsistencies in his 9 statements, “without regard to whether” they go “to the 10 heart of the applicant’s claim.” 8 U.S.C. 11 § 1158(b)(1)(B)(iii). We “defer therefore to [the agency’s] 12 credibility determination unless, from the totality of the 13 circumstances, it is plain that no reasonable fact-finder 14 could make such an adverse credibility ruling.” Xiu Xia Lin 15 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam). 16 The agency reasonably based its adverse credibility 17 determination on the inconsistencies between Dong’s airport 18 interview and the contradictory statements he made in his 19 asylum application and at his hearing. A comparison shows a 20 substantial discrepancy. Dong initially stated he fled 21 China because his girlfriend was forced to abort a 22 pregnancy, but he applied for asylum based on alleged past 23 3persecution as a Falun Gong practitioner. On appeal, Dong 1 argues, for the first time, that the airport interview is 2 unreliable because the immigration officer “did nothing to 3 encourage [him] to elaborate or explain” after he stated 4 that he fled due to his girlfriend’s forced abortion. 5 However, this contention is both unexhausted because it was 6 not proffered below, see Lin Zhong v. U.S. Dep’t of Justice , 7 480 F.3d 104, 124 (2d Cir. 2007) (recognizing that issue 8 exhaustion is a mandatory, although not jurisdictional, 9 requirement), and unavailing, as it is highly unlikely that 10 further probing of Dong’s forced abortion claim would have 11 revealed a completely unrelated Falun Gong claim, cf. Majidi 12 v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (holding that 13 the IJ is not required to accept even plausible explanations 14 unless a reasonable fact-finder would be compelled to do 15 so). Moreover, Dong’s present explanation is itself 16 inconsistent with his contention below that he never made 17 the forced abortion claim. The IJ therefore did not err in 18 relying on the airport interview. See Yun-Zui Guan v. 19 Gonzales, 432 F.3d 391, 396-98 (2d Cir. 2005) (per curiam). 20 Moreover, the agency reasonably determined that there 21 were additional inconsistencies relating to Dong’s alleged 22 past persecution as a Falun Gong practitioner. The 23 4documentary evidence indicated that Dong was detained 1 because of his attendance at Falun Gong organization 2 activities, which differed from his testimony that his only 3 arrest was for leafletting on his own. Although Dong 4 explained that distributing leaflets was one such activity, 5 where competing inferences may be drawn from the evidence we 6 defer to the agency when, as here, “the deductions are not 7 illogical or implausible.” Siewe v. Gonzales, 480 F.3d 160, 8 167 (2d Cir. 2007) (internal quotation marks and citation 9 omitted). 10 Having called Dong’s credibility into question, the 11 agency reasonably determined that his failure to corroborate 12 his practice of Falun Gong in the United States further 13 undermined his claim. See 8 U.S.C. § 1158(b)(1)(B)(ii) 14 (providing that “[t]he testimony of the applicant may be 15 sufficient to sustain the applicant’s burden without 16 corroboration, but only ifthe applicant satisfies the trier 17 of fact that the applicant’s testimony is credible, is 18 persuasive, and refers to specific facts sufficient to 19 demonstrate that the applicant is a refugee” (emphasis 20 added)). “An applicant’s failure to corroborate [his] 21 testimony may bear on credibility, because the absence of 22 corroboration in general makes an applicant unable to 23 5rehabilitate testimony that has already been called into 1 question.” See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d 2 Cir. 2007) (per curiam). Dong argues on appeal that he 3 offered an adequate explanation for his failure to provide 4 witnesses: they either lacked status or “[did not] have 5 time” or could not offer probative testimony because they 6 did not practice Falun Gong. However, it was reasonable for 7 the IJ and the BIA to find that these explanations were 8 insufficient given that it would not have taken significant 9 time to prepare a written statement

. See 8 U.S.C. § 10 1254(b)(4) (“No court shall reverse a determination made by 11 a trier of fact with respect to the availability of 12 corroborating evidence . . . [unless] a reasonable trier of 13 fact is compelled to conclude that such corroborating 14 evidence is unavailable.”). 15 The totality of the circumstances supports the adverse 16 credibility determination given the completely different 17 bases for asylum proffered at Dong’s initial interview and 18 in his testimony at the hearing, and his failure to 19 corroborate the Falun Gong claim proffered at the hearing. 20 Because all of Dong’s claims depend on the same factual 21 predicate, the adverse credibility determination is 22

6dispositive of asylum, withholding of removal, and CAT 1 relief. See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2 2006); Xue Hong Yang, 426 F.3d at 523. 3 4 For the foregoing reasons, the petition for review is 5 DENIED. The pending request for oral argument in this 6 petition is DENIED in accordance with Federal Rule of 7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 8 34.1(b). 9
FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 12 13 14

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