15-3024 

Qiu v. Lynch 

BIA 

Balasquide, IJ 

A200 919 454 

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 

30th 4 day of November, two thousand sixteen. 

5 

6 PRESENT: 

7 DENNIS JACOBS,

8 SUSAN L. CARNEY, 

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 DE YE QIU, 

14 Petitioner, 

15 

16 v. 15-3024 

17 NAC 

18 LORETTA E. LYNCH, UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: De Ye Qiu, pro se, New York, N.Y. 

24 

25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

26 Assistant Attorney General; Cindy S. 

27 Ferrier, Assistant Director; 

28 Kimberly A. Burdge, Trial Attorney, 

29 Office of Immigration Litigation, 

30 United States Department of Justice, 

31 Washington, 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 De Ye Qiu, a native and citizen of the People’s 

6 Republic of China, seeks review of a September 1, 2015, decision 

7 of the BIA, affirming a January 6, 2014, decision of an 

8 Immigration Judge (“IJ”) denying Qiu’s application for asylum, 

9 withholding of removal, and relief under the Convention Against 

10 Torture (“CAT”). In re De Ye Qiu, No. A200 919 454 (B.I.A. Sept. 

11 1, 2015), aff’g No. A200 919 454 (Immig. Ct. N.Y. City Jan. 6, 

12 2014). We assume the parties’ familiarity with the underlying 

13 facts and procedural history in this case. 

14 Under the circumstances of this case, we have reviewed both 

15 the IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432 

16 F.3d 391, 394 (2d Cir. 2005). Qiu does not challenge the 

17 pretermission of his asylum application as untimely. See 

18 Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005). 

19 We thus consider only the agency’s denial of withholding of 

20 removal and CAT relief. The applicable standards of review are 

21 well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin 

22 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 
3 

1 For asylum applications like Qiu’s, governed by the REAL 

2 ID Act, the agency may, “[c]onsidering the totality of the 

3 circumstances,” base a credibility finding on inconsistencies 

4 in an applicant’s statements and documentary evidence, “without 

5 regard to whether” those inconsistencies go “to the heart of 

6 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu 

7 Xia Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s 

8 credibility determination unless, from the totality of the 

9 circumstances, it is plain that no reasonable fact-finder could 

10 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d 

11 at 167. As discussed below, the adverse credibility 

12 determination rests on substantial evidence. 

13 The agency reasonably cited inconsistencies between Qiu’s 

14 testimony and application concerning his date of departure from 

15 China and entry to the United States. At the outset of the 

16 hearing, Qiu testified that he left China on May 12, 2012, and 

17 entered the United States the same day. He subsequently 

18 testified that he left China on April 7, 2011, and entered the 

19 United States on May 12, 2011. His attorney asked him why his 

20 application reflected that he left China on April 7, 2010, and 

21 entered the United States on May 12, 2010; Qiu responded that 

22 his application was wrong: he left China on April 7, 2011, and 
4 

1 entered the United States on May 12, 2011. His attorney showed 

2 him his asylum application, which was signed on September 13, 

3 2010. After confirming that the application bore his 

4 signature, he was asked how it was possible to have applied for 

5 asylum in September 2010 if he left China in April 2011; Qiu 

6 then testified that he left China on April 7, 2010. Qiu did 

7 not attempt to explain his shifting testimony. See Majidi v. 

8 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 

9 do more than offer a plausible explanation for his inconsistent 

10 statements to secure relief; he must demonstrate that a 

11 reasonable fact-finder would be compelled to credit his 

12 testimony.” (internal quotation marks and citations omitted)); 

13 see also 8 C.F.R § 1208.3(c)(2) (“The applicant’s signature 

14 establishes a presumption that the applicant is aware of the 

15 contents of the application.”). 

16 Qiu’s hotel receipt from Beijing compounded the confusion 

17 concerning Qiu’s date of departure. See Xiu Xia Lin, 534 F.3d 

18 at 167. Qiu testified that he stayed at a hotel in Beijing from 

19 April 5 to 7, 2010, before leaving China. The hotel receipt 

20 reflected those dates. Qiu then testified that, after checking 

21 out of the hotel on April 7, 2010, he remained in China an 

22 additional three nights: one night at the airport, and two 
5 

1 nights at a civilian house. Qiu then testified that he stayed 

2 at the civilian house until April 5, 2010, after which he 

3 returned home; he testified again that he stayed at the hotel 

4 from April 5 to 7, 2010, and left China directly from the hotel. 

5 The IJ reasonably rejected Qiu’s explanation—that he didn’t 

6 remember—because it did not account for the inconsistencies in 

7 his story. See Majidi, 430 F.3d at 80. 

8 The adverse credibility determination is further supported 

9 by inconsistencies between Qiu’s testimony and evidence 

10 concerning his employment history in China. Xiu Xia Lin, 534 

11 F.3d at 167. Qiu submitted a health certificate dated November 

12 20, 2009, and testified that his restaurant employer requested 

13 it. However, Qiu had previously testified that he was fired 

14 from the restaurant on October 21, 2009, after being released 

15 from custody. When confronted with this inconsistency, Qiu 

16 testified that he had been seeking employment elsewhere. The 

17 agency was not required to accept that explanation. See 

18 Majidi, 430 F.3d at 80. 

19 In his pro se brief, Qiu does not challenge the 

20 inconsistencies, but argues that they were minor and did not 

21 go to the heart of his claim. Qiu’s argument is misplaced 

22 because it relies on pre-REAL ID Act precedent. Under the REAL 
6 

1 ID Act, which governs Qiu’s case, “an IJ may rely on any

2 inconsistency or omission in making an adverse credibility 

3 determination,” where, as here, “the ‘totality of the 

4 circumstances’ establishes that an asylum applicant is not 

5 credible.” Xiu Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C. 

6 § 1158(b)(1)(B)(iii)) (emphasis in original). 

7 Given the multiple inconsistencies identified, it cannot 

8 be said “that no reasonable fact-finder could make such a 

9 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. That 

10 finding is dispositive of withholding of removal and CAT relief 

11 because both forms of relief are based on the same factual 

12 predicate. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 

13 2006). 

14 For the foregoing reasons, the petition for review is 

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

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

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

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

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

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

21 34.1(b). 

22 FOR THE COURT: 

23 Catherine O’Hagan Wolfe, Clerk