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.

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

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

11th 4 day of September, two thousand seventeen. 

5 

6 PRESENT: 

7 RICHARD C. WESLEY,

8 PETER W. HALL, 

9 DENNY CHIN,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 XIAODUN LI, 

14 Petitioner, 

15 

16 v. 16-2100 

17 NAC 

18 JEFFERSON B. SESSIONS III, 

19 UNITED STATES ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Mike P. Gao, Flushing, NY. 

24 

25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 

26 Attorney General; Stephen J. Flynn, 

27 Assistant Director; Imran R. Zaidi 

28 and Arthur L. Rabin, Trial 

29 Attorneys, Office of Immigration 

30 Litigation, United States 

31 Department of Justice, Washington, 

32 DC. 
2

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 is 

4 DENIED. 

5 Petitioner Xiaodun Li, a native and citizen of the People’s 

6 Republic of China, seeks review of a June 1, 2016, decision of 

7 the BIA affirming a December 8, 2015, decision of an Immigration 

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

9 of removal, and relief under the Convention Against Torture 

10 (“CAT”). In re Xiaodun Li, No. A200 929 061 (B.I.A. June 1, 

11 2016), aff’g No. A200 929 061 (Immig. Ct. N.Y. City Dec. 8, 

12 2015). We assume the parties’ familiarity with the underlying 

13 facts and procedural history in this case. 

14 In lieu of filing a brief, the Government moves for summary 

15 denial of Li’s petition for review. Summary denial is 

16 warranted only if a petition is frivolous. Pillay v. INS, 45 

17 F.3d 14, 17 (2d Cir. 1995); United States v. Davis, 598 F.3d 

18 10, 13-14 (2d Cir. 2010). We decline to address whether this 

19 petition is frivolous. Li has filed his merits brief, thus we 

20 treat the Government’s motion as a response to that brief. For 

21 the following reasons, we deny the petition. 

22 We have considered both the IJ’s and the BIA’s opinions “for 

23 the sake of completeness.” Wangchuck v. Dep’t of Homeland 
3

1 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable 

2 standards of review are well established. See 8 U.S.C. 

3 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d 

4 Cir. 2009). 

5 Under the REAL ID Act of 2005, the agency may, in light of 

6 “the totality of the circumstances,” base an adverse 

7 credibility determination on inconsistencies in an applicant’s 

8 statements “without regard to whether” those inconsistencies 

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

10 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534 F.3d 

11 162, 167 (2d Cir. 2008). In conducting “substantial evidence” 

12 review, “we defer . . . to an IJ’s credibility determination 

13 unless, from the totality of the circumstances, it is plain that 

14 no reasonable fact-finder could make such an adverse 

15 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. 

16 The adverse credibility determination is sound. At the 

17 merits hearing, the Government attorney asked Li if he had ever 

18 applied to the immigration service for permission to return to 

19 China. Li answered no. The Government attorney then showed 

20 Li a travel authorization application, which Li confirmed he 

21 submitted in September 2013, seeking permission to spend 40 days 

22 in China and then return to the United States. 
4

1 Li tried to explain his false denial: the application was 

2 not granted, and he surmised that it was lost because the 

3 associated fee was never deducted from his bank account. The 

4 IJ was not obligated to credit these explanations, particularly 

5 given that the Government attorney had asked whether Li had 

6 sought--not received--permission to return to China. Majidi 

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

8 the agency is not required to credit an explanation that is 

9 merely plausible or possible). 

10 Nor was the IJ obligated to credit Li’s alternative 

11 explanation that his filial duty to his father overcame his fear 

12 of returning to China. As the IJ observed, Li’s attempt to 

13 return to China undercut his professed subjective fear of 

14 persecution. In that respect, Li’s inconsistent testimony 

15 went to the heart of his claim. 8 U.S.C. § 1158(b)(1)(B)(iii); 

16 see also Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 

17 295 (2d Cir. 2006) (holding that a single inconsistency 

18 “concerning the nature of [the applicant’s] mistreatment 

19 . . . afforded substantial evidence to support the adverse 

20 credibility finding”). 

21 Li’s false statement supports the agency’s adverse 

22 credibility determination. Siewe v. Gonzales, 480 F.3d 160, 

23 170 (2d Cir. 2007) (“[A] single false document or a single 
5

1 instance of false testimony may (if attributable to the 

2 petitioner) infect the balance of the alien’s uncorroborated 

3 or unauthenticated evidence.”). Li’s asylum, withholding of 

4 removal, and CAT claims were all based on the same factual 

5 predicate, and so the credibility determination was dispositive 

6 as to all three forms of relief. See Paul v. Gonzales, 444 F.3d 

7 148, 156-57 (2d Cir. 2006). 

8 For the foregoing reasons, the petition for review is 

9 DENIED, and the Government’s motion for summary denial is DENIED 

10 as moot. As we have completed our review, any stay of removal 

11 that the Court previously granted in this petition is VACATED, 

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

13 is DISMISSED as moot. Any pending request for oral argument 

14 in this petition is DENIED in accordance with Federal Rule of 

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

16 34.1(b). 

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk