10-4458-ag Xu v. Holder BIA Abrams, IJ A078 854 006 

## 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 29 **th** 

### day of March, two thousand twelve. 4 5 

### PRESENT: 6 

### JOSEPH M. McLAUGHLIN, 7 

### GUIDO CALABRESI, 8 

### REENA RAGGI, 9 

### Circuit Judges **.** 10



### ______________________________________ 11 12 

### LI HAN XU, ALSO KNOWN AS SANDJAJA 13 

### HANDRYANTO, 14 

### Petitioner **,** 15 16 

### v. **10-4458-ag** 17 

### NAC 18 

### ERIC H. HOLDER, JR., UNITED STATES 19 

### ATTORNEY GENERAL, 20 

### Respondent **.** 21



### ______________________________________ 22 23 

### FOR PETITIONER: **Feng Li, Moslemi and Associates,** 24 

### Inc., New York, N.Y. 25 26 

### FOR RESPONDENT: **Tony West, Assistant Attorney** 27 

### General; Russell J.E. Verby, Senior 28 

### Litigation Counsel; John D. 29 

### Williams, Trial Attorney, Office of 30

### 2 **Immigration Litigation, United** 1 

### States Department of Justice, 2 

### Washington, D.C. 3 4 

### UPON DUE CONSIDERATION of this petition for review of a 5 

### Board of Immigration Appeals (“BIA”) decision, it is hereby 6 

### ORDERED, ADJUDGED, AND DECREED, that the petition for review 7 

### is DENIED. 8 

### Li Han Xu, a native and citizen of China, seeks review 9 

### of an October 22, 2010, order of the BIA affirming the 10 

### February 23, 2009, decision of Immigration Judge (“IJ”) 11 

### Steven R. Abrams, which denied Xu’s application for asylum, 12 

### withholding of removal, and relief under the Convention 13 

### Against Torture (“CAT”). In re Li Han Xu, No. A078 854 006 14 

### (B.I.A. Oct. 22, 2010), aff’g No. A078 854 006 (Immig. Ct. 15 

### N.Y. City Feb. 23, 2009). We assume the parties’ 16 

### familiarity with the underlying facts and procedural history 17 

### in this case. 18 

### Under the circumstances of this case, we have reviewed 19 

### the decision of the IJ as supplemented by the BIA. See Yan 20



### Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 21 

### applicable standards of review are well-established. See 22 

### 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 23 

### F.3d 90, 95 (2d Cir. 2008); Bah v. Mukasey , 529 F.3d 99, 110 24 

### (2d Cir. 2008). 25

### 3 The agency reasonably relied on the inconsistency 1 

### between Xu’s hearing testimony and his airport interview in 2 

### finding him not credible. Specifically, Xu’s asylum claim 3 

### was based on his hearing testimony that he had two children, 4 

### but he stated in his airport interview that he had only one 5 

### child. See Dong v. Ashcroft , 406 F.3d 110, 112 (2d Cir. 6 

### 2005) (holding that an IJ may base an adverse credibility 7 

### determination on discrepancies that go to “the heart of 8 

### [petitioner’s] asylum claim” (internal quotation marks 9 

### omitted)); Ramsameachire v. Ashcroft , 357 F.3d 169, 179-80 10 

### (2d Cir. 2004) (holding that this Court examines record of 11 

### airport interview to ensure that it represents a 12 

### “sufficiently accurate record” of asylum applicant’s 13 

### statements to merit consideration in determining whether 14 

### applicant is credible). The agency did not err in rejecting 15 

### his explanations that his airport-interview statement was 16 

### “not complete” because he had been “quite nervous” and 17 

### because his interpreter had communicated with him by 18 

### telephone. See Majidi v. Gonzales , 430 F.3d 77, 80-81 (2d 19 

### Cir. 2005) (concluding that agency need not credit asylum 20 

### applicant’s explanations for inconsistent testimony unless 21 

### those explanations would compel a reasonable fact-finder to 22

### 4 do so); see also Yun-Zui Guan v. Gonzales , 432 F.3d 391, 398 1 

### n.6 (2d Cir. 2005) (holding that asylum applicant’s “mere 2 

### recitation that he was nervous or felt pressured during an 3 

### airport interview will not automatically prevent” agency 4 

### from relying on interview as long as agency acknowledges and 5 

### evaluates this explanation). 6 

### The adverse credibility determination was further 7 

### supported by the agency’s finding that, in the six years 8 

### since his last hearing, Xu failed to provide any additional 9 

### evidence to corroborate the existence of his second child. 10



### See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) 11 

### (holding asylum applicant’s failure to corroborate his 12 

### testimony may bear on his credibility where “the absence of 13 

### corroboration in general makes an applicant unable to 14 

### rehabilitate testimony that has already been called into 15 

### question”). Accordingly, given the lack of corroborating 16 

### evidence to rehabilitate Xu’s inconsistent statements as to 17 

### how many children he has and the fact that this issue is 18 

### central to Xu’s asylum claim, substantial evidence supports 19 

### the agency’s adverse credibility determination. 20 

### As the existence of his second child is necessary to 21 

### both Xu’s claims of past persecution and his fear of future 22

### 5 persecution, the credibility determination is dispositive 1 

### and we do not address Xu’s additional arguments. 2 

### For the foregoing reasons, the petition for review is 3 

### DENIED. As we have completed our review, any stay of 4 

### removal that the Court previously granted in this petition 5 

### is VACATED, and any pending motion for a stay of removal in 6 

### this petition is DISMISSED as moot. Any pending request for 7 

### oral argument in this petition is DENIED in accordance with 8 

### Federal Rule of Appellate Procedure 34(a)(2), and Second 9 

### Circuit Local Rule 34.1(b). 10



### FOR THE COURT: 11 

### Catherine O’Hagan Wolfe, Clerk 12 13 14