15-4137 

Xu v. Sessions 

BIA 

Vomacka, IJ 

A205 033 972 

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 for 

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

15th day of February, two thousand eighteen. 

PRESENT: 

ROSEMARY S. POOLER,

REENA RAGGI, 

PETER W. HALL,

Circuit Judges. 

_____________________________________ 

YINGAI XU, 

 Petitioner, 

v. 15-4137 

 NAC 

JEFFERSON B. SESSIONS III, UNITED 

STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Yingai Xu, Monterey Park, C.A. 

FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

Assistant Attorney General; Julie M. 

Iversen, Senior Litigation Counsel; 

Sergio Sarkany, Attorney, Office of 

Immigration Litigation, United 

States Department of Justice, 

Washington, D.C. 
2 

UPON DUE CONSIDERATION of this petition for review of a 

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

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

DISMISSED IN PART and DENIED IN PART. 

 Petitioner Yingai Xu, a native and citizen of China, seeks 

review of a December 11, 2015, decision of the BIA affirming 

a June 19, 2014, decision of an Immigration Judge (“IJ”) denying 

Xu’s application for asylum, withholding of removal, and relief 

under the Convention Against Torture (“CAT”). In re Yingai Xu, 

No. A205 033 972 (B.I.A. Dec. 11, 2015), aff’g No. A205 033 972 

(Immig. Ct. N.Y. City June 19, 2014). We assume the parties’ 

familiarity with the underlying facts and procedural history 

in this case. 

 We have reviewed the IJ’s decision as supplemented and 

modified by the BIA (i.e., including the BIA’s additional 

corroboration analysis, but excluding the IJ’s inconsistency 

finding regarding Xu’s pants). See Xue Hong Yang v. U.S. Dep’t 

of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. 

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable 

standards of review are well established. See 8 U.S.C. 

§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 

(2d Cir. 2008). We have liberally construed Xu’s pro se brief 
3 

as raising the strongest arguments it suggests. Triestman v. 

Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006). 

I. Asylum 

 An asylum application must be filed within one year of an 

applicant’s arrival in the United States, absent changed or 

extraordinary circumstances. 8 U.S.C. § 1158(a)(2)(B), (D). We 

generally lack jurisdiction to review the denial of asylum as 

untimely; however, we have jurisdiction to review 

“constitutional claims or questions of law raised upon a 

petition for review.” 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). 

Xu’s argument that the agency should have credited her account 

of her arrival in the United States and her explanation for the 

lack of any travel documents does not raise a constitutional 

claim or question of law. Credibility findings are factual and 

not subject to review in this context. Cf. Xiu Xia Lin, 534 F.3d 

at 165. We therefore dismiss Xu’s petition as to her asylum claim 

for lack of jurisdiction. 

II. Withholding of Removal and CAT Relief

 The governing REAL ID Act credibility standard provides 

that the agency may, “[c]onsidering the totality of the 

circumstances,” base a credibility finding on an applicant’s 

“demeanor, candor, or responsiveness,” the “plausibility of 
4 

[her] account,” and inconsistencies in her statements and other 

record evidence “without regard to whether” those 

inconsistencies “go[] to the heart of the applicant’s claim.” 

8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. 

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

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

reasonable fact-finder could make such an adverse credibility 

ruling.” Xiu Xia Lin, 534 F.3d at 167. Further, “[a] petitioner 

must do more than offer a plausible explanation for h[er] 

inconsistent statements to secure relief; [s]he must 

demonstrate that a reasonable fact-finder would be compelled

to credit h[er] testimony.” Majidi v. Gonzales, 430 F.3d 77, 

80 (2d Cir. 2005) (internal quotation marks omitted). For the 

reasons that follow, we conclude that substantial evidence 

supported the agency’s determination that Xu was not credible. 

 First, the agency reasonably based the credibility 

determination on the inconsistency between Xu’s testimony and 

her asylum application regarding how she discovered her 

pregnancy. See Xiu Xia Lin, 534 F.3d at 163-64, 167. Xu stated 

in her application that she became sick and vomited after 

breakfast one day, and then went to a nearby clinic where a 

doctor confirmed her pregnancy. Xu testified, however, that she 
5 

did not go to see a doctor. Instead, she testified that she 

suspected she was pregnant when she missed her period and then 

confirmed her pregnancy with a home pregnancy test from the 

pharmacy. When confronted with the discrepancy, Xu explained 

that she also saw a doctor at the pharmacy. But the IJ was not 

compelled to accept this explanation because it did not resolve 

Xu’s inconsistent testimony, and it was inconsistent with Xu’s 

prior testimony that there was only a pharmacist at the pharmacy 

who might have suspected she was pregnant because she bought 

the home pregnancy test. See Majidi, 430 F.3d at 80. 

 Second, the agency reasonably relied on the implausibility 

of Xu’s testimony about the Korean alias on her asylum 

application (Kim, Hae Lee). See Xiu Xia Lin, 534 F.3d at 163-64, 

167. Xu was asked whether she ever used the last name “Kim,” 

and she responded that she did not think so. When asked again, 

Xu stated that she could not recall. Finally, when asked if Kim 

was the name on the Korean passport she had used to enter the 

United States, Xu responded: “Yes, I think it’s possible.” 

Certified Administrative Record (“CAR”) at 177-78. The agency 

reasonably found this testimony implausible because Xu had 

worked as a Korean language tutor and should have been able to 

remember the identity she assumed while traveling through 
6 

various countries in Europe and attempting to enter the United 

States. See Xiu Xia Lin, 534 F.3d at 167. 

 Third, the agency reasonably based the credibility 

determination on the IJ’s observations of Xu’s demeanor. See 

id. at 163-64, 167. “[D]emeanor is paradigmatically the sort 

of evidence that a fact-finder is best positioned to evaluate,” 

Li Zu Guan v. INS, 453 F.3d 129, 140 (2d Cir. 2006), and we 

therefore “give particular deference to credibility 

determinations that are based on the adjudicator’s observation 

of the applicant’s demeanor,” Jin Chen v. U.S. Dep’t of Justice, 

426 F.3d 104, 113 (2d Cir. 2005). Here, the IJ found that Xu 

gave many hesitant or self-contradictory answers, seemed to be 

reluctant to make definite statements, had trouble remembering 

basic facts and details about her case, and often had to be 

prompted. As one example, the IJ noted that he had to question 

Xu repeatedly before she identified the documents that she 

claimed were in her former attorney’s possession. This finding 

is supported by the record, and we therefore give it deference. 

See Xiu Xia Lin, 534 F.3d at 167; Jin Chen, 426 F.3d at 113. 

 Finally, the IJ agency reasonably relied on Xu’s lack of 

corroborating evidence in assessing her credibility. See Biao 

Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An 
7 

applicant’s failure to corroborate his or her testimony may bear 

on credibility, because the absence of corroboration in general 

makes an applicant unable to rehabilitate testimony that has 

already been called into question.”). The IJ correctly observed 

that Xu did not submit any corroborating evidence beyond 

identification documents, and Xu does not claim that the agency 

erred in finding this evidence insufficient to rehabilitate her 

credibility. Instead, she contends that the IJ erred by failing 

to provide notice of her need to submit specific pieces of 

corroborating evidence. However, Xu’s argument conflates 

corroboration in the adverse credibility context with the 

denial of a credible claim for failure to submit reasonably 

available corroborating evidence. See Petitioner’s Br. at 14 

(citing 8 U.S.C. §§ 1158(b)(1)(B)(ii)); compare Biao Yang, 496 

F.3d at 273 (explaining “the absence of corroboration in general 

makes an applicant unable to rehabilitate testimony that has 

already been called into question”) with 8 U.S.C. 

§§ 1158(b)(1)(B)(ii)(explaining corroboration may not be 

necessary “if the applicant satisfies the trier of fact that 

the applicant’s testimony is credible,” among other 

requirements), 1252(b)(4). Although Xu testified that she had 

a fine notice and a fine receipt (but did not submit them because 
8 

her former attorney in Los Angeles had them) and a letter from 

her parents corroborating her forced abortion (but did not 

submit it because she did not think it was evidence), the agency 

did not deny relief because Xu did not submit this evidence; 

it merely considered the absence of this evidence in assessing 

Xu’s credibility. In any event, the IJ was not obligated to list 

each document required to establish a successful claim because 

“[a]n alien applying for relief or protection from removal has 

the burden of proof.” 8 U.S.C § 1229a(c)(4)(A); cf. Chuilu Liu 

v. Holder, 575 F.3d 193, 198 (2d Cir. 2009) (“While [the Court] 

ha[s] sometimes remanded a case if the IJ failed to explain his 

reliance on a lack of corroborating evidence, the alien bears 

the ultimate burden of introducing such evidence without 

prompting from the IJ.”). 

 Given the agency’s foregoing demeanor and inconsistency 

findings, and its reasonable consideration of Xu’s 

corroborating evidence, the totality of the circumstances 

supports the adverse credibility determination. See Xiu Xia 

Lin, 534 F.3d at 167. A reasonable adjudicator would not be 

compelled to conclude otherwise. Id. The credibility finding 

is dispositive of withholding of removal and CAT relief because 

both claims are based on the same factual predicate. See Paul 
9 

v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). We therefore 

deny the petition as to withholding of removal and CAT relief. 

 For the foregoing reasons, the petition for review is 

DISMISSED IN PART and DENIED IN PART. As we have completed our 

review, any stay of removal that the Court previously granted 

in this petition is VACATED. Any pending request for oral 

argument in this petition is DENIED in accordance with Federal 

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

Rule 34.1(b). 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk