14-1060 

Xu v. Lynch

BIA 

Cheng, IJ 

A200 603 621

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 

18th 4 day of September, two thousand fifteen. 

5 

6 PRESENT: 

7 JOSÉ A. CABRANES,

8 DEBRA ANN LIVINGSTON, 

9 SUSAN L. CARNEY,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 XIAN ZHU XU, 

14 Petitioner, 

15 

16 v. 14-1060 

17 NAC 

18 

19 LORETTA E. LYNCH, UNITED STATES 

20 ATTORNEY GENERAL, 

21 Respondent. 

22 _____________________________________ 

23 

24 FOR PETITIONER: Theodore N. Cox, New York, New York. 

25 

26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant 

27 Attorney General, Civil Division; 

28 Stephen J. Flynn, Assistant 

29 Director; James A. Hurley, Attorney, 
2

1 Office of Immigration Litigation, 

2 United States Department of Justice, 

3 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 is 

8 DENIED. 

9 Petitioner Xian Zhu Xu, a native and citizen of China, seeks 

10 review of a March 31, 2014 decision of the BIA affirming a July 

11 12, 2012 decision of an Immigration Judge (“IJ”) denying Xu’s 

12 application for asylum, withholding of removal, and relief 

13 under the Convention Against Torture (“CAT”). In re Xian Zhu 

14 Xu, No. A200 603 621 (B.I.A. Mar. 31, 2014), aff’g No. A200 603 

15 621 (Immig. Ct. N.Y.C. July 12, 2012). We assume the parties’ 

16 familiarity with the underlying facts and procedural history 

17 in this case. 

18 We have reviewed the IJ’s decision as supplemented by the 

19 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 

20 The applicable standards of review are well established. See 

21 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 

22 513 (2d Cir. 2009). 
3

1 For asylum applications like Xu’s, that are governed by the 

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

3 circumstances,” base a credibility finding on inconsistencies 

4 in an asylum applicant’s statements and other record evidence 

5 “without regard to whether” they go “to the heart of the 

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

7 Xia Lin v. Mukasey, 534 F.3d 162, 163-64, 167 (2d Cir. 2008)(per 

8 curiam). 

9 In its adverse credibility finding here, the agency 

10 reasonably relied on the inconsistencies between Xu’s credible 

11 fear interview and her testimony and application. Xu’s 

12 credible fear interview bears sufficient indicia of 

13 reliability, and Xu does not contest that the relevant 

14 assertions that she made there were false and conflicted with 

15 the asylum claim she presented in her subsequent application 

16 and testimony. See Ming Zhang v. Holder, 585 F.3d 715, 723-25 

17 (2d Cir. 2009). 

18 Xu argues that the agency erred by relying solely upon the 

19 discrepancies between her credible fear interview and her 

20 testimony and application. When the agency “has ‘identified 

21 a material inconsistency in an aspect of [the applicant’s] story 
4

1 that served as an example of the very persecution from which 

2 he sought asylum,’ . . . the inconsistency [can] afford[] 

3 substantial evidence to support the adverse credibility 

4 finding.” Xian Tuan Ye v. DHS, 446 F.3d 289, 295 (2d Cir. 2006) 

5 (quoting Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)). 

6 The inconsistencies relied upon by the agency were material: 

7 they concerned whether or not Xu had an abortion, whether she 

8 was detained for hours or 20 days, whether she was pregnant once 

9 or twice, whether she remained in hiding for 11 years, and 

10 whether she was persecuted because she violated the family 

11 planning policy or if there was an additional basis, such as 

12 her support of Falun Gong. The agency’s reliance on these 

13 discrepancies was proper. 

14 Thus, at her credible fear interview, Xu alleged that 

15 family planning officials discovered her second pregnancy, 

16 arrested and detained her for 20 days, and forced her to 

17 terminate the pregnancy because she was not married. She 

18 stated that she went into hiding for almost 11 years following 

19 that incident. In contrast, her asylum application and 

20 testimony omit any assertions about the abortion and second 

21 pregnancy, the 20-day detention, and her 11 years of hiding. 
5

1 Instead, there, Xu alleged that she was detained for a few hours 

2 and fined for being pregnant out of wedlock, but was not forced 

3 to have an abortion. She asserted in addition that she was 

4 later arrested, detained, and beaten for criticizing the 

5 Chinese Government’s suppression of Falun Gong. Xu’s 

6 explanation for the divergent accounts—that she was forced to 

7 tell the asylum officer the story a snakehead gave her—is not 

8 one that the agency was compelled to credit, particularly since 

9 the snakehead did not attend the interview, Xu was instructed 

10 there on the importance of telling the truth, and her husband 

11 had already been granted withholding of removal on a Falun Gong 

12 claim. See Majidi, 430 F.3d at 80 (“A petitioner must do more 

13 than offer a plausible explanation for his inconsistent 

14 statements to secure relief; he must demonstrate that a 

15 reasonable fact-finder would be compelled to credit his 

16 testimony.” (internal quotations omitted)). 

17 Xu also faults the IJ for not considering her Falun Gong 

18 claim and her husband’s testimony. The IJ’s decision contains 

19 detailed descriptions of both, however, and the IJ specifically 

20 concluded that, after “considering all the evidence,” there was 

21 no “reasonable way to reconcile” the two different accounts of 
6

1 persecution that Xu advanced. In re Xian Zhu Xu, No. A200 603 

2 621, at 25 (Immig. Ct. N.Y.C. July 12, 2012). Although the IJ 

3 stated that she relied on inconsistencies relating to the family 

4 planning ground, the agency is not required to “expressly parse 

5 or refute on the record each individual argument or piece of 

6 evidence offered by the petitioner.” Zhi Yun Gao v. Mukasey, 

7 508 F.3d 86, 87 (2d Cir. 2007)(per curiam)(internal quotation 

8 marks omitted). 

9 Xu’s final argument is that the agency inappropriately 

10 applied the doctrine falsus in uno, falsus in omnibus because 

11 the agency did not consider that her husband’s testimony 

12 corroborated her claim and that Xu’s credible fear interview 

13 was not reliable. The agency explicitly considered, however, 

14 that Xu’s husband’s testimony corroborated her own and that her 

15 husband was unable to clarify certain discrepancies in her 

16 testimony and the record. See Immig. Ct. Dec. at 16-20. In 

17 addition, as noted above, the agency did not err in relying on 

18 Xu’s credible fear interview because it bore sufficient indicia 

19 of reliability. Ming Zhang, 585 F.3d at 723-25. 

20 Because the totality of the circumstances supports the 

21 agency’s adverse credibility determination, and because all of 
7

1 Xu’s claims relied on the same factual predicate, the 

2 determination is dispositive of asylum, withholding of removal, 

3 and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d 

4 Cir. 2006) 

5 For the foregoing reasons, the petition for review is 

6 DENIED. Since we have completed our review, any stay of removal 

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

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

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

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

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

12 34.1(b). 

13 FOR THE COURT: 

14 Catherine O=Hagan Wolfe, Clerk