16-2100 Li v. Sessions BIA Sichel, IJ A200 929 061 

### 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **11 th**  **day of September, two thousand seventeen.** 4 5 **PRESENT:** 6 **RICHARD C. WESLEY,** 7 **PETER W. HALL,** 8 **DENNY CHIN,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **XIAODUN LI,** 13 Petitioner **,** 14 15 **v. 16-2100** 16 **NAC** 17 **JEFFERSON B. SESSIONS III,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Mike P. Gao, Flushing, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Stephen J. Flynn, 26 Assistant Director; Imran R. Zaidi 27 and Arthur L. Rabin, Trial 28 Attorneys, Office of Immigration 29 Litigation, United States 30 Department of Justice, Washington, 31 DC. 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Xiaodun Li, a native and citizen of the People’s 5 Republic of China, seeks review of a June 1, 2016, decision of 6 the BIA affirming a December 8, 2015, decision of an Immigration 7 Judge (“IJ”) denying Li’s application for asylum, withholding 8 of removal, and relief under the Convention Against Torture 9 (“CAT”). In re Xiaodun Li, No. A200 929 061 (B.I.A. June 1, 10 2016), aff’g No. A200 929 061 (Immig. Ct. N.Y. City Dec. 8, 11 2015). We assume the parties’ familiarity with the underlying 12 facts and procedural history in this case. 13 In lieu of filing a brief, the Government moves for summary 14 denial of Li’s petition for review. Summary denial is 15 warranted only if a petition is frivolous. Pillay v. INS , 45 16 F.3d 14, 17 (2d Cir. 1995); United States v. Davis , 598 F.3d 17 10, 13-14 (2d Cir. 2010). We decline to address whether this 18 petition is frivolous. Li has filed his merits brief, thus we 19 treat the Government’s motion as a response to that brief. For 20 the following reasons, we deny the petition. 21

We have considered both the IJ’s and the BIA’s opinions “for 22 the sake of completeness.” Wangchuck v. Dep’t of Homeland 233 Sec. , 448 F.3d 524, 528 (2d Cir. 2006). The applicable 1 standards of review are well established. See 8 U.S.C. 2 § 1252(b)(4)(B); Yanqin Weng v. Holder , 562 F.3d 510, 513 (2d 3 Cir. 2009). 4 Under the REAL ID Act of 2005, the agency may, in light of 5 “the totality of the circumstances,” base an adverse 6 credibility determination on inconsistencies in an applicant’s 7 statements “without regard to whether” those inconsistencies 8 “go[] to the heart of the applicant’s claim.” 8 U.S.C. 9 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey , 534 F.3d 10 162, 167 (2d Cir. 2008). In conducting “substantial evidence” 11 review, “we defer . . . to an IJ’s credibility determination 12 unless, from the totality of the circumstances, it is plain that 13 no reasonable fact-finder could make such an adverse 14 credibility ruling.” Xiu Xia Lin , 534 F.3d at 167. 15 The adverse credibility determination is sound. At the 16 merits hearing, the Government attorney asked Li if he had ever 17 applied to the immigration service for permission to return to 18 China. Li answered no. The Government attorney then showed 19 Li a travel authorization application, which Li confirmed he 20 submitted in September 2013, seeking permission to spend 40 days 21 in China and then return to the United States. 224 Li tried to explain his false denial: the application was 1 not granted, and he surmised that it was lost because the 2 associated fee was never deducted from his bank account. The 3 IJ was not obligated to credit these explanations, particularly 4 given that the Government attorney had asked whether Li had 5 sought--not received--permission to return to China. Majidi 6 v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (explaining that 7 the agency is not required to credit an explanation that is 8 merely plausible or possible). 9 Nor was the IJ obligated to credit Li’s alternative 10 explanation that his filial duty to his father overcame his fear 11 of returning to China. As the IJ observed, Li’s attempt to 12 return to China undercut his professed subjective fear of 13 persecution. In that respect, Li’s inconsistent testimony 14 went to the heart of his claim. 8 U.S.C. § 1158(b)(1)(B)(iii); 15 see also Xian Tuan Ye v. Dep’t of Homeland Sec. , 446 F.3d 289, 16 295 (2d Cir. 2006) (holding that a single inconsistency 17 “concerning the nature of [ the applicant’s] mistreatment 18 . . . afforded substantial evidence to support the adverse 19 credibility finding”). 20 Li’s false statement supports the agency’s adverse 21 credibility determination. Siewe v. Gonzales , 480 F.3d 160, 22 170 (2d Cir. 2007) (“[A] single false document or a single 235 instance of false testimony may (if attributable to the 1 petitioner) infect the balance of the alien’s uncorroborated 2 or unauthenticated evidence.”). Li’s asylum, withholding of 3 removal, and CAT claims were all based on the same factual 4 predicate, and so the credibility determination was dispositive 5 as to all three forms of relief. See Paul v. Gonzales , 444 F.3d 6 148, 156-57 (2d Cir. 2006). 7 For the foregoing reasons, the petition for review is 8 DENIED, and the Government’s motion for summary denial is DENIED 9 as moot. As we have completed our review, any stay of removal 10 that the Court previously granted in this petition is VACATED, 11 and any pending motion for a stay of removal in this petition 12 is DISMISSED as moot. Any pending request for oral argument 13 in this petition is DENIED in accordance with Federal Rule of 14 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 15 34.1(b). 16
FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18