09-4670-ag Lian v. Holder BIA Van Wyke, IJ A099 025 415 

### 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** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 8 th** **day of February, two thousand eleven.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **ROBERT D. SACK,** 8 **GERARD E. LYNCH,** 9 Circuit Judges. 10

**_______________________________________** 11 12 **Zhi Xin Lian,** 13 Petitioner**,** 14 15 **v. 09-4670-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL** 19 Respondent**.** 20

**______________________________________** 21 22 **FOR PETITIONER: Sheema Chaudhry, Law Offices of Michael** 23 **Brown, New York, New York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney General;** 26 **Richard M. Evans, Assistant Director;** 27 **Sharon M. Clay, Trial Attorney, Office of** 28 **Immigration Litigation, Civil Division,** 29 **United States Department of Justice,** 302 **Washington, D.C.** 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Zhi Xin Lian, a native and citizen of China, 6 seeks review of an October 15, 2009, order of the BIA 7 affirming the October 17, 2007, decision of Immigration 8 Judge (“IJ”) William Van Wyke denying Lian’s application for 9 asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”). In re Zhi Xin Lian , No. 11 A099 025 415 (B.I.A. Oct. 15, 2009), aff’gNo. A099 025 415 12 (Immig. Ct. N.Y. City Oct. 17, 2007). We assume the 13 parties’ familiarity with the underlying facts and 14 procedural history in this case. 15 Under the circumstances of this case, we review the 16 IJ’s decision as supplemented by the BIA’s decision. See 17 Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). We 18 affirm the agency’s factual findings, including its 19 credibility determinations, if they are supported by 20 substantial evidence. See Ascencio-Rodriguez v. Holder, 595 21 F.3d 105, 110 (2d Cir. 2010). 22 Substantial evidence supports the agency’s adverse 233 credibility determination. See Yanquin Weng, 562 F.3d at 1 513. Under the REAL ID Act, which applies to Liu’s 2 application for relief, “an IJ may rely on any inconsistency 3 or omission in making an adverse credibility determination 4 as long as the ‘totality of the circumstances’ establishes 5 that an asylum applicant is not credible.” Xiu Xia Lin v. 6 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (emphasis in 7 original). 8 Here, the IJ noted the discrepancy between Lian's 9 statements during his initial airport credible fear 10 interviews, in which he stated that he feared persecution 11 under China’s family planning policy, and his asylum 12 application and testimony before the IJ, in which he 13 asserted that he feared persecution as a Falun Gong 14 practitioner. The IJ reasonably relied on this 15 inconsistency, as there has been no showing that the airport 16 interview was so unreliable that it should not be considered 17 part of the record, see Ramsameachire v. Ashcroft , 357 F.3d 18 169, 180 (2d Cir. 2004) ,and the inconsistency is dramatic, 19 see id.at 180-81 (“Where the alien’s airport statements and 20 his or her later testimony present materially different 21 accounts of his or her purported persecution, however, the 224 inconsistencies may render the alien’s testimony 1 incredible.”). 2 The IJ also noted inconsistencies between the testimony 3 of Lian’s witness, Yuan, and Lian’s own testimony, and found 4 that those inconsistencies adversely affected Lian’s 5 credibility. Lian concedes that there were inconsistencies, 6 but argues that the IJ erred in relying on them because the 7 inconsistencies were minor. However, an IJ may “rely on any 8 inconsistency . . . as long as the ‘totality of the 9 circumstances’ establishes that an asylum applicant is not 10 credible.” Xiu Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C. 11 § 1158(b)(1)(B)(iii)) (emphasis in original). Thus, the 12 inconsistencies between Yuan’s testimony and Lian’s 13 testimony were properly considered in evaluating Lian's 14 credibility as part of the totality of the circumstances. 15 Finally, the IJ found that Liu’s credibility was 16 undermined by his demeanor, which the IJ described as 17 “hesitant,” unemotional, and weak, such that his testimony 18 “sounded contrived.” We defer to the IJ on this assessment, 19 see Majidi v. Gonzales , 430 F.3d 77, 81 n. 1 (2d Cir. 2005), 20 mindful of his unique advantage in hearing directly from the 21 asylum applicant, see Zhou Yun Zhang v. INS, 386 F.3d 66, 73 225 (2d Cir. 2004), overruled on other grounds by Shi Liang Lin 1 v. U.S. Dep’t of Justice , 494 F.3d 296 (2d Cir. 2007) (en 2 banc). 3 Ultimately, the discrepancies the IJ identified and his 4 assessment of Lian’s demeanor provide substantial evidence 5 for his adverse credibility determination. See 8 U.S.C. 6 § 1158(b)(1)(B)(iii). Because Lian’s claims for asylum, 7 withholding of removal, and relief under the CAT were based 8 on the same factual predicate, the agency’s adverse 9 credibility determination forecloses all three forms of 10 relief. See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 11 2006). 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of 14 removal that the Court previously granted in this petition 15 is VACATED, and any pending motion for a stay of removal in 16 this petition is DISMISSED as moot. 17
FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19