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.

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 

16th 4 day of August, two thousand sixteen. 

5 

6 PRESENT: 

7 DENNIS JACOBS,

8 DENNY CHIN, 

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 GUO BIN HE, 

14 Petitioner, 

15 

16 v. 15-855 

17 NAC 

18 LORETTA E. LYNCH, UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Mona Liza F. Lao, New York, New York. 

24 

25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

26 Assistant Attorney General; Shelley 

27 R. Goad, Assistant Director; Russell 

28 J.E. Verby, Senior Litigation 

29 Counsel, Office of Immigration 

30 Litigation, United States 

31 Department of Justice, Washington, 

32 D.C. 
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 Guo Bin He, a native and citizen of the People’s 

6 Republic of China, seeks review of a February 23, 2015, decision 

7 of the BIA affirming a May 31, 2013, decision of an Immigration 

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

9 of removal, and relief under the Convention Against Torture 

10 (“CAT”). In re Guo Bin He, No. A087 434 520 (B.I.A. Feb. 23, 

11 2015), aff’g No. A087 434 520 (Immig. Ct. N.Y. City May 31, 

12 2013). We assume the parties’ familiarity with the underlying 

13 facts and procedural history in this case. 

14 We have reviewed both the IJ’s and the BIA’s opinions. 

15 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The 

16 applicable standards of review are well established. See 

17 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 

18 165-66 (2d Cir. 2008). For asylum applications like He’s, 

19 governed by the REAL ID Act, the agency may, “[c]onsidering the 

20 totality of the circumstances . . . base a credibility 

21 determination on the demeanor, candor, or responsiveness of the 

22 applicant or witness, the inherent plausibility of the 

23 applicant’s or witness’s account,” and inconsistencies in an 
3

1 applicant’s statements and other record evidence “without 

2 regard to whether” they go “to the heart of the applicant’s 

3 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d 

4 at 163-64. The agency’s adverse credibility determination is 

5 based on substantial evidence. 

6 The IJ reasonably relied on He’s admission, on cross 

7 examination, that he fabricated the entire claim of past harm 

8 that he provided during his credible fear interview. See Siewe 

9 v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007); Xian Tuan Ye v. 

10 DHS, 446 F.3d 289, 295 (2d Cir. 2006). Given He’s lie under 

11 oath to avoid removal, the IJ was not required to credit He’s 

12 explanation—that the smuggler told him to lie in order to stay 

13 in the country, work, and pay the smuggler back. Siewe, 480 

14 F.3d at 170; Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005). 

15 The IJ reasonably found that He’s hearing testimony and 

16 that of his witness further undermined his credibility. He 

17 testified he passed out flyers with his witness, but the witness 

18 denied they had ever done so. The IJ was entitled to rely on 

19 this inconsistency, which undermined He’s claim that he is a 

20 practicing Christian. Xiu Xia Lin, 534 F.3d at 163-64. 

21 The IJ also cited He’s demeanor: he provided unresponsive 

22 or vague answers throughout cross examination. We generally 

23 afford particular deference to an IJ’s assessment of an 
4

1 applicant’s demeanor. Jin Chen v. U.S. Dep’t of Justice, 426 

2 F.3d 104, 113 (2d Cir. 2005). 

3 Accordingly, considering the totality of the 

4 circumstances, the agency’s credibility determination is 

5 supported by substantial evidence. See 8 U.S.C. 

6 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64; Siewe, 

7 480 F.3d at 170. The adverse credibility determination is 

8 dispositive of He’s claims for asylum, withholding of removal 

9 and CAT, as all three claims were based on the same factual 

10 predicate. 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 removal 

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

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

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

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

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

19 34.1(b). 

20 FOR THE COURT: 

21 Catherine O=Hagan Wolfe, Clerk