15-855 He v. Lynch BIA Loprest, IJ A087 434 520 

### 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 **16 th**  **day of August, two thousand sixteen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **DENNY CHIN,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **GUO BIN HE,** 13 Petitioner **,** 14 15 **v. 15-855** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Mona Liza F. Lao, New York, New York. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 25 Assistant Attorney General; Shelley 26 R. Goad, Assistant Director; Russell 27 J.E. Verby, Senior Litigation 28 Counsel, Office of Immigration 29 Litigation, United States 30 Department of Justice, Washington, 31 D.C. 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 Guo Bin He, a native and citizen of the People’s 5 Republic of China, seeks review of a February 23, 2015, decision 6 of the BIA affirming a May 31, 2013, decision of an Immigration 7 Judge (“IJ”) denying He’s application for asylum, withholding 8 of removal, and relief under the Convention Against Torture 9 (“CAT”). In re Guo Bin He, No. A087 434 520 (B.I.A. Feb. 23, 10 2015), aff’g No. A087 434 520 (Immig. Ct. N.Y. City May 31, 11 2013). We assume the parties’ familiarity with the underlying 12 facts and procedural history in this case. 13 We have reviewed both the IJ’s and the BIA’s opinions. 14 Yun-Zui Guan v. Gonzales , 432 F.3d 391, 394 (2d Cir. 2005). The 15 applicable standards of review are well established. See 16 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey , 534 F.3d 162, 17 165-66 (2d Cir. 2008). For asylum applications like He’s, 18 governed by the REAL ID Act, the agency may, “[c]onsidering the 19 totality of the circumstances . . . base a credibility 20 determination on the demeanor, candor, or responsiveness of the 21 applicant or witness, the inherent plausibility of the 22 applicant’s or witness’s account,” and inconsistencies in an 233 applicant’s statements and other record evidence “without 1 regard to whether” they go “to the heart of the applicant’s 2 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d 3 at 163-64. The agency’s adverse credibility determination is 4 based on substantial evidence. 5 The IJ reasonably relied on He’s admission, on cross 6 examination, that he fabricated the e ntire claim of past harm 7 that he provided during his credible fear interview. See Siewe 8 v. Gonzales , 480 F.3d 160, 170 (2d Cir. 2007); Xian Tuan Ye v. 9

DHS , 446 F.3d 289, 295 (2d Cir. 2006). Given He’s lie under 10 oath to avoid removal, the IJ was not required to credit He’s 11 explanation—that the smuggler told him to lie in order to stay 12 in the country, work, and pay the smuggler back. Siewe , 480 13 F.3d at 170; Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005). 14 The IJ reasonably found that He’s hearing testimony and 15 that of his witness further undermined his credibility. He 16 testified he passed out flyers with his witness, but the witness 17 denied they had ever done so. The IJ was entitled to rely on 18 this inconsistency, which undermined He’s claim that he is a 19 practicing Christian. Xiu Xia Lin , 534 F.3d at 163-64. 20 The IJ also cited He’s demeanor: he provided unresponsive 21 or vague answers throughout cross examination. We generally 22 afford particular deference to an IJ’s assessment of an 234 applicant’s demeanor. Jin Chen v. U.S. Dep’t of Justice , 426 1 F.3d 104, 113 (2d Cir. 2005). 2 Accordingly, considering the totality of the 3 circumstances, the agency’s credibility determination is 4 supported by substantial evidence. See 8 U.S.C. 5 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 163-64; Siewe , 6 480 F.3d at 170. The adverse credibility determination is 7 dispositive of He’s claims for asylum, withholding of removal 8 and CAT, as all three claims were based on the same factual 9 predicate. See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 10 2006). 11 For the foregoing reasons, the petition for review is 12 DENIED. As we have completed our rev iew, any stay of removal 13 that the Court previously granted in this petition is VACATED, 14 and any pending motion for a stay of removal in this petition 15 is DISMISSED as moot. Any pending request for oral argument 16 in this petition is DENIED in accordance with Federal Rule of 17 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 18 34.1(b). 19

FOR THE COURT: 20 Catherine O = Hagan Wolfe, Clerk 21