12-769 Xie v. HolderBIA 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 9 th** **day of April, two thousand thirteen.** 4 5 **PRESENT:** 6 **PETER W. HALL,** 7 **DENNY CHIN,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **EN XIE,** 13 Petitioner**,** 14 15 **v. 12-769** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Herman S. Dhade, West Bloomfield,** 23 **Michigan.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Jennifer L.** 27 **Lightbody, Senior Litigation** 28 **Counsel; Laura M.L. Maroldy, Trial** 29**Attorney, Office of Immigration** 1 **Litigation, United States Department** 2 **of Justice, 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 DISMISSED in part and DENIED in part. 8 En Xie, a native and citizen of China, seeks review of 9 a February 9, 2012, decision of the BIA affirming the May 10 24, 2010, decision of Immigration Judge (“IJ”) William Van 11 Wyke, which pretermitted his asylum application as untimely, 12 and in the alternative, denied his applications for asylum, 13 withholding of removal, and for relief under the Convention 14 Against Torture (“CAT”) for a lack of credibility. In re En 15 Xie , No. A099 163 866 (B.I.A. Feb. 9, 2012), aff’gNo. A099 16 163 866 (Immig. Ct. N.Y. City May 24, 2010). We assume the 17 parties’ familiarity with the underlying facts and 18 procedural history in this case. 19 **I. Asylum** 20 Xie challenges the agency’s denial of his asylum 21 application as untimely, asserting that he credibly 22 testified that he filed one day before the filing deadline. 23 Although we lack jurisdiction to review timeliness 24

2determinations, see 8 U.S.C. § 1158(a)(3), (a)(2)(B), we 1 retain jurisdiction to review constitutional claims and 2 “questions of law,” 8 U.S.C. § 1252(a)(2)(D). Xie does not 3 raise such a claim or question, however, but merely 4 disagrees with the agency’s fact-finding. Thus, we lack 5 jurisdiction to review this claim. See Barco-Sandoval v. 6 Gonzales , 516 F.3d 35, 39 (2d Cir. 2008). 7 **II. Withholding of Removal** 8 Under the circumstances of this case, we have reviewed 9 the IJ’s decision as modified by the BIA. Yun-Zui Guan v. 10 Gonzales , 432 F.3d 391, 394 (2d Cir. 2005). For 11 applications such as Xie’s, governed by the amendments made 12 to the Immigration and Nationality Act by the REAL ID Act of 13 2005, the agency may, considering the totality of the 14 circumstances, base a credibility finding on the applicant’s 15 “demeanor, candor, or responsiveness,” the plausibility of 16 his account, and inconsistencies in his statements, without 17 regard to whether they go “to the heart of the applicant’s 18 claim.” See8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); 19 Xiu Xia Lin v. Mukasey,534 F.3d 162, 167 (2d Cir. 2008). 20 We will “defer to an IJ’s credibility determination unless, 21 from the totality of the circumstances, it is plain that no 22

3reasonable fact-finder could make” such a ruling. Xiu Xia 1 Lin, 534 F.3d at 167. In this case, the IJ’s adverse 2 credibility determination is supported by substantial 3 evidence

. 4 The IJ reasonably based his credibility finding on 5 discrepancies between Xie’s testimony and his documents, his 6 non-responsiveness, and his lack of reliable documentary 7 evidence. See8 U.S.C. §§ 1158(b)(1)(B)(iii), 8 1231(b)(3)(C); Xiu Xia Lin , 534 F.3d at 167; Biao Yang v. 9 Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). 10 First, the IJ’s adverse credibility determination was 11 reasonably based on unexplained discrepancies between Xie’s 12 testimony and his documents, including: (1) Xie’s testimony 13 that his family moved from their home in 2004 but his 14 household register stated he moved in 1993; and (2) his 15 testimony that he had lived in Massachusetts and Michigan, 16 while his asylum application listed only one address, which 17 was in New York. The IJ reasonably relied on these and 18 other inconsistencies in making his adverse credibility 19 determination. See8 U.S.C. §§ 1158(b)(1)(B)(iii), 20 1231(b)(3)(C); Xiu Xia Lin,534 F.3d at 167 (providing that 21 an IJ may support an adverse credibility determination with 22

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

4unable to offer any satisfactory explanation for the 1 inconsistencies. 2 Second, the adverse credibility determination is 3 further supported by Xie’s non-responsiveness. When the IJ 4 questioned Xie about why his twin brother, who had been 5 granted asylum based on the same claims and who lives in the 6 United States, did not testify on Xie’s behalf, the IJ noted 7 that Xie provided halting, vague, and stammering responses. 8 Furthermore, questions about Xie’s work history and previous 9 residences elicited “hesitant, confused, [and] somewhat 10 equivocal” responses that the IJ found unconvincing. 11 Because the IJ’s credibility finding was tied to these 12 instances of non-responsiveness and Xie’s demeanor, we defer 13 to that finding. See Li Hua Lin v. U.S. Dep’t of Justice, 14 453 F.3d 99, 109 (2d Cir. 2006). 15 Given the discrepancies between Xie’s application and 16 testimony and his lack of responsiveness, the IJ did not err 17 in requiring additional corroboration. See Chuilu Lui v. 18 Holder, 575 F.3d 193, 198-99 (2d Cir. 2009). However, Xie’s 19 documents were all photocopies, some of which were not fully 20 translated, and others not signed by the appropriate 21 official. Furthermore, Xie did not offer his brother’s 22 testimony, in any format, as evidence, though he lives in 23 5the United States and allegedly obtained asylum based on the 1 same hardships that Xie suffered. 8 C.F.R. 2 § 1158(b)(1)(B)(i); see Chuilu Liu , 575 F.3d at 198; Biao 3 Yang, 496 F.3d at 273. 4

**III. CAT** 5 Finally, while we do not agree with the government’s 6 contention that Xie has waived his CAT claim by failing to 7 meaningfully argue it, the claim fails because it is based 8 on the same non-credible testimony and documents as Xie’s 9 withholding claim. See Xue Hong Yang v. U.S. Dep’t of 10 Justice , 426 F.3d 520, 522-23 (2d Cir. 2005). 11 For the foregoing reasons, the petition for review is 12 DISMISSED in part and DENIED in part. As we have completed 13 our review, any stay of removal that the Court previously 14 granted in this petition is VACATED, and any pending motion 15 for a stay of removal in this petition is DENIED as moot. 16 Any pending request for oral argument is DENIED in 17 accordance with Federal Rule of Appellate Procedure 18 34(a)(2), and Second Circuit Local Rule 34(d)(1). 19
FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21

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