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.

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

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 29th 4 day of March, two thousand twelve.

5

6 PRESENT:

7 JOSEPH M. McLAUGHLIN,

8 GUIDO CALABRESI,

9 REENA RAGGI,

10 Circuit Judges.

11 ______________________________________

12

13 LI HAN XU, ALSO KNOWN AS SANDJAJA

14 HANDRYANTO,

15 Petitioner, 

16

17 v. 10-4458-ag

18 NAC

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 ______________________________________

23

24 FOR PETITIONER: Feng Li, Moslemi and Associates,

25 Inc., New York, N.Y.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Russell J.E. Verby, Senior

29 Litigation Counsel; John D.

30 Williams, Trial Attorney, Office of
2

1 Immigration Litigation, United

2 States Department of Justice,

3 Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DENIED.

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

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

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

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

13 withholding of removal, and relief under the Convention

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

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

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

17 familiarity with the underlying facts and procedural history

18 in this case.

19 Under the circumstances of this case, we have reviewed

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

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

22 applicable standards of review are well-established. See

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

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

25 (2d Cir. 2008). 
3

1 The agency reasonably relied on the inconsistency

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

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

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

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

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

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

8 determination on discrepancies that go to “the heart of

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

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

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

12 airport interview to ensure that it represents a

13 “sufficiently accurate record” of asylum applicant’s

14 statements to merit consideration in determining whether

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

16 his explanations that his airport-interview statement was

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

18 because his interpreter had communicated with him by

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

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

21 applicant’s explanations for inconsistent testimony unless

22 those explanations would compel a reasonable fact-finder to
4

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

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

3 recitation that he was nervous or felt pressured during an

4 airport interview will not automatically prevent” agency

5 from relying on interview as long as agency acknowledges and

6 evaluates this explanation).

7 The adverse credibility determination was further

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

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

10 evidence to corroborate the existence of his second child. 

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

12 (holding asylum applicant’s failure to corroborate his

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

14 corroboration in general makes an applicant unable to

15 rehabilitate testimony that has already been called into

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

17 evidence to rehabilitate Xu’s inconsistent statements as to

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

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

20 the agency’s adverse credibility determination.

21 As the existence of his second child is necessary to

22 both Xu’s claims of past persecution and his fear of future
5

1 persecution, the credibility determination is dispositive

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

3 For the foregoing reasons, the petition for review is

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

5 removal that the Court previously granted in this petition

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

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

8 oral argument in this petition is DENIED in accordance with

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

10 Circuit Local Rule 34.1(b).

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk

13

14