16-2884 Ou v. Sessions BIA Loprest, IJ A201 128 205 

### 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** 1 **for the Second Circuit, held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 1 st**  **day of May, two thousand eighteen.** 4 5 **PRESENT:** 6 **BARRINGTON D. PARKER,** 7 **RAYMOND J. LOHIER, JR.,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **QIJUN OU,** 13 Petitioner **,** 14 15 **v. 16-2884** 16 **NAC** 17 **JEFFERSON B. SESSIONS III,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Gerald Karikari, New York, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Carl McIntyre, 26 Assistant Director; Brooke M. 27 Maurer, Trial Attorney, Office of 28 Immigration Litigation, United 29 States Department of Justice, 30 Washington, DC. 312 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 3 is DENIED. 4 Petitioner Qijun Ou, a native and citizen of the People’s 5 Republic of China, seeks review of a July 29, 2016, decision 6 of the BIA affirming an April 17, 2015, decision of an 7 Immigration Judge (“IJ”) denying Ou’s application for asylum, 8 withholding of removal, and relief under the Convention 9 Against Torture (“CAT”). In re Qijun Ou, No. A 201 128 205 10 (B.I.A. July 29, 2016), aff’g No. A 201 128 205 (Immig. Ct. 11 N.Y. C. Apr. 17, 2015). We assume the parties’ familiarity 12 with the underlying facts and procedural history in this case. 13 Under the circumstances of this case, we have reviewed 14 both the IJ’s and BIA’s decisions. Yun-Zui Guan v. 15 Gonzales , 432 F.3d 391, 394 (2d Cir. 2005). The applicable 16 standards of review are well established. See 8 U.S.C. 17 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165- 18 66 (2d Cir. 2008)(per curiam). 19 The agency may, “[c]onsidering the totality of the 20 circumstances,” base a credibility finding on an asylum 21 applicant’s “demeanor, candor, or responsiveness” and any 22 inconsistencies and omissions in his testimony, 233 application, and documentary evidence. 8 U.S.C. 1 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin , 534 F.3d at 2 163-64, 167. “We defer . . . to an IJ’s credibility 3 determination unless . . . it is plain that no reasonable 4 fact-finder could make such an adverse credibility ruling.” 5 Xiu Xia Lin , 534 F.3d at 167; see 8 U.S.C. § 1252(b)(4)(B). 6 Here, substantial evidence supports the agency’s 7 determination that Ou was not credible. 8 The agency reasonably relied on discrepancies regarding 9 the length of Ou’s detention and his medical treatment. 10 8 U.S.C. § 1158(b)(1)(B)(iii). Ou’s testimony that he was 11 detained for three days contradicted his testimony that he 12 was detained from December 25 until December 31 (a total of 13 six days). The agency was not required to accept Ou’s 14 explanation that his medical condition resolved this 15 inconsistency given that his medical records reflected only 16 that he was diagnosed with a respiratory infection, “fever 17 [,] and cough,” and did not mention that Ou was 18 unconscious. See Xiu Xia Lin , 534 F.3d at 166-167, 166 n.3 19 (noting that “an inconsistency and an omission 20 are . . . functionally equivalent” for credibility 21 purposes); Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 22 2005) (“A petitioner must do more than offer a plausible 234 explanation for his inconsistent statements to secure 1 relief; he must demonstrate that a reasonable fact-finder 2 would be compelled to credit his testimony.” (quotation 3 marks omitted)). 4 Ou now argues that the English translations of his 5 medical records are incomplete and unreliable. But Ou did 6 not raise this issue before the BIA, and it is therefore 7 unexhausted. Foster v. U.S. INS , 376 F.3d 75, 78 (2d Cir. 8 2004) (requiring the “petitioner to raise issues to the BIA 9 in order to preserve them for judicial review”). Moreover, 10 because Ou has the burden of proof and and he introduced the 11 medical records and translations into evidence, it was his 12 responsibility to ensure that his own translations were 13

accurate. See 8 U.S.C. § 1158(b)(1)(B)(i). 14 As the Government argues, Ou has waived any further 15 review because he does not challenge any other bases for 16 the agency’s adverse credibility ruling. See Shunfu Li v. 17 Mukasey , 529 F.3d 141, 146 (2d Cir. 2008). Moreover, our 18 review of the record reveals no basis for challenging the 19 IJ’s negative demeanor finding, given the lack of detail 20 and responsiveness in Ou’s testimony. Li Hua Lin v. U.S. 21 Dep’t of Justice , 453 F.3d 99, 109 (2d Cir. 2006) (granting 22 particular deference to credibility findings based on 235 applicant’s demeanor). 1 Given the multiple discrepancies, only two of which Ou 2 challenges, as well as the negative demeanor finding, the 3 totality of the circumstances supports the agency’s ruling. 4 Xiu Xia Lin , 534 F.3d at 166-67. Contrary to Ou’s 5 position, because asylum, withholding of removal, and CAT 6 relief were all based on the same factual predicate, the 7 adverse credibility determination is dispositive. Paul v. 8 Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006); see also 9 Siewe v. Gonzales , 480 F.3d 160, 170 (2d Cir. 2007). 10 For the foregoing reasons, the petition for review is 11 DENIED. As we have completed our rev iew, any stay of removal 12 that the Court previously granted in this petition is VACATED, 13 and any pending motion for a stay of removal in this petition 14 is DISMISSED as moot. 15
FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk of Court 17