12-769 

Xie v. Holder 

 BIA

Van Wyke, IJ

A099 163 866

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 9th 4 day of April, two thousand thirteen.

5

6 PRESENT:

7 PETER W. HALL,

8 DENNY CHIN,

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges. 

11 _______________________________________

12

13 EN XIE,

14 Petitioner, 

15

16 v. 12-769

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Herman S. Dhade, West Bloomfield,

24 Michigan.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Jennifer L.

28 Lightbody, Senior Litigation

29 Counsel; Laura M.L. Maroldy, Trial
1 Attorney, Office of Immigration

2 Litigation, United States Department

3 of Justice, 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 DISMISSED in part and DENIED in part.

9 En Xie, a native and citizen of China, seeks review of

10 a February 9, 2012, decision of the BIA affirming the May

11 24, 2010, decision of Immigration Judge (“IJ”) William Van

12 Wyke, which pretermitted his asylum application as untimely,

13 and in the alternative, denied his applications for asylum,

14 withholding of removal, and for relief under the Convention

15 Against Torture (“CAT”) for a lack of credibility. In re En

16 Xie, No. A099 163 866 (B.I.A. Feb. 9, 2012), aff’g No. A099

17 163 866 (Immig. Ct. N.Y. City May 24, 2010). We assume the

18 parties’ familiarity with the underlying facts and

19 procedural history in this case.

20 I. Asylum

21 Xie challenges the agency’s denial of his asylum

22 application as untimely, asserting that he credibly

23 testified that he filed one day before the filing deadline. 

24 Although we lack jurisdiction to review timeliness

2
1 determinations, see 8 U.S.C. § 1158(a)(3), (a)(2)(B), we

2 retain jurisdiction to review constitutional claims and

3 “questions of law,” 8 U.S.C. § 1252(a)(2)(D). Xie does not

4 raise such a claim or question, however, but merely

5 disagrees with the agency’s fact-finding. Thus, we lack

6 jurisdiction to review this claim. See Barco-Sandoval v.

7 Gonzales, 516 F.3d 35, 39 (2d Cir. 2008).

8 II. Withholding of Removal

9 Under the circumstances of this case, we have reviewed

10 the IJ’s decision as modified by the BIA. Yun-Zui Guan v.

11 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). For

12 applications such as Xie’s, governed by the amendments made

13 to the Immigration and Nationality Act by the REAL ID Act of

14 2005, the agency may, considering the totality of the

15 circumstances, base a credibility finding on the applicant’s

16 “demeanor, candor, or responsiveness,” the plausibility of

17 his account, and inconsistencies in his statements, without

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

19 claim.” See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);

20 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). 

21 We will “defer to an IJ’s credibility determination unless,

22 from the totality of the circumstances, it is plain that no

3
1 reasonable fact-finder could make” such a ruling. Xiu Xia

2 Lin, 534 F.3d at 167. In this case, the IJ’s adverse

3 credibility determination is supported by substantial

4 evidence. 

5 The IJ reasonably based his credibility finding on

6 discrepancies between Xie’s testimony and his documents, his

7 non-responsiveness, and his lack of reliable documentary

8 evidence. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),

9 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167; Biao Yang v.

10 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). 

11 First, the IJ’s adverse credibility determination was

12 reasonably based on unexplained discrepancies between Xie’s

13 testimony and his documents, including: (1) Xie’s testimony

14 that his family moved from their home in 2004 but his

15 household register stated he moved in 1993; and (2) his

16 testimony that he had lived in Massachusetts and Michigan,

17 while his asylum application listed only one address, which

18 was in New York. The IJ reasonably relied on these and

19 other inconsistencies in making his adverse credibility

20 determination. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),

21 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167 (providing that

22 an IJ may support an adverse credibility determination with

23 “any inconsistency or omission”). When questioned, Xie was

4
1 unable to offer any satisfactory explanation for the

2 inconsistencies. 

3 Second, the adverse credibility determination is

4 further supported by Xie’s non-responsiveness. When the IJ

5 questioned Xie about why his twin brother, who had been

6 granted asylum based on the same claims and who lives in the

7 United States, did not testify on Xie’s behalf, the IJ noted

8 that Xie provided halting, vague, and stammering responses. 

9 Furthermore, questions about Xie’s work history and previous

10 residences elicited “hesitant, confused, [and] somewhat

11 equivocal” responses that the IJ found unconvincing. 

12 Because the IJ’s credibility finding was tied to these

13 instances of non-responsiveness and Xie’s demeanor, we defer

14 to that finding. See Li Hua Lin v. U.S. Dep’t of Justice,

15 453 F.3d 99, 109 (2d Cir. 2006). 

16 Given the discrepancies between Xie’s application and

17 testimony and his lack of responsiveness, the IJ did not err

18 in requiring additional corroboration. See Chuilu Lui v.

19 Holder, 575 F.3d 193, 198-99 (2d Cir. 2009). However, Xie’s

20 documents were all photocopies, some of which were not fully

21 translated, and others not signed by the appropriate

22 official. Furthermore, Xie did not offer his brother’s

23 testimony, in any format, as evidence, though he lives in

5
1 the United States and allegedly obtained asylum based on the

2 same hardships that Xie suffered. 8 C.F.R. 

3 § 1158(b)(1)(B)(i); see Chuilu Liu, 575 F.3d at 198; Biao

4 Yang, 496 F.3d at 273.

5 III. CAT

6 Finally, while we do not agree with the government’s

7 contention that Xie has waived his CAT claim by failing to

8 meaningfully argue it, the claim fails because it is based

9 on the same non-credible testimony and documents as Xie’s

10 withholding claim. See Xue Hong Yang v. U.S. Dep’t of

11 Justice, 426 F.3d 520, 522-23 (2d Cir. 2005).

12 For the foregoing reasons, the petition for review is

13 DISMISSED in part and DENIED in part. As we have completed

14 our review, any stay of removal that the Court previously

15 granted in this petition is VACATED, and any pending motion

16 for a stay of removal in this petition is DENIED as moot.

17 Any pending request for oral argument is DENIED in

18 accordance with Federal Rule of Appellate Procedure

19 34(a)(2), and Second Circuit Local Rule 34(d)(1). 

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

6