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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **18 th**  **day of September, two thousand fifteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **DEBRA ANN LIVINGSTON,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **XIAN ZHU XU,** 13 Petitioner **,** 14 15 **v. 14-1060** 16 **NAC** 17 18 **LORETTA E. LYNCH, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Theodore N. Cox, New York, New York. 24 25 **FOR RESPONDENT:** Joyce R. Branda, Acting Assistant 26 Attorney General, Civil Division; 27 Stephen J. Flynn, Assistant 28 Director; James A. Hurley, Attorney, 292 Office of Immigration Litigation, 1 United States Department of Justice, 2 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 is 7

DENIED. 8 Petitioner Xian Zhu Xu, a native and citizen of China, seeks 9 review of a March 31, 2014 decis ion of the BIA affirming a July 10 12, 2012 decision of an Immigration Judge (“IJ”) denying Xu’s 11 application for asylum, withholding of removal, and relief 12 under the Convention Against Torture (“CAT”). In re Xian Zhu 13 Xu, No. A200 603 621 (B. I.A. Mar. 31, 2014), aff’g No. A200 603 14 621 (Immig. Ct. N.Y.C. July 12, 2012). We assume the parties’ 15 familiarity with the underlying facts and procedural history 16 in this case. 17 We have reviewed the IJ’s decision as supplemented by the 18

BIA. See Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). 19 The applicable standards of review are well established. See 20 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder , 562 F.3d 510, 21 513 (2d Cir. 2009). 223 For asylum applications like Xu’s, that are governed by the 1 REAL ID Act, the agency may, “[c]onsidering the totality of the 2 circumstances,” base a credibility finding on inconsistencies 3 in an asylum applicant’s statements and other record evidence 4 “without regard to whether” they go “to the heart of the 5 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); See Xiu 6 Xia Lin v. Mukasey , 534 F.3d 162, 163-64, 167 (2d Cir. 2008)(per 7 curiam). 8 In its adverse credibility finding here, the agency 9 reasonably relied on the inconsistencies between Xu’s credible 10 fear interview and her testimony and application. Xu’s 11 credible fear interview bears sufficient indicia of 12 reliability, and Xu does not contest that the relevant 13 assertions that she made there were false and conflicted with 14 the asylum claim she presented in her subsequent application 15 and testimony. See Ming Zhang v. Holder , 585 F.3d 715, 723-25 16 (2d Cir. 2009). 17 Xu argues that the agency erred by relying solely upon the 18 discrepancies between her credible fear interview and her 19 testimony and application. When the agency “has ‘identified 20

a material inconsistency in an aspect of [the applicant’s] story 214 that served as an example of the very persecution from which 1 he sought asylum,’ . . . the inconsistency [can] afford[] 2 substantial evidence to support the adverse credibility 3 finding.” Xian Tuan Ye v. DHS , 446 F.3d 289, 295 (2d Cir. 2006) 4 (quoting Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005)). 5 The inconsistencies relied upon by the agency were material: 6 they concerned whether or not Xu had an abortion, whether she 7 was detained for hours or 20 days, whether she was pregnant once 8 or twice, whether she remained in hiding for 11 years, and 9 whether she was persecuted because she violated the family 10 planning policy or if there was an additional basis, such as 11 her support of Falun Gong. The agency’s reliance on these 12 discrepancies was proper. 13 Thus, at her credible fear interview, Xu alleged that 14 family planning officials discovered her second pregnancy, 15 arrested and detained her for 20 days, and forced her to 16 terminate the pregnancy because she was not married. She 17 stated that she went into hiding for almost 11 years following 18 that incident. In contrast, her asylum application and 19 testimony omit any assertions about the abortion and second 20 pregnancy, the 20-day detention, and her 11 years of hiding. 215 Instead, there, Xu alleged that she was detained for a few hours 1 and fined for being pregnant out of wedlock, but was not forced 2 to have an abortion. She asserted in addition that she was 3 later arrested, detained, and beaten for criticizing the 4 Chinese Government’s suppression of Falun Gong. Xu’s 5 explanation for the divergent accounts—that she was forced to 6 tell the asylum officer the story a snakehead gave her—is not 7 one that the agency was compelled to credit, particularly since 8 the snakehead did not attend the interview, Xu was instructed 9 there on the importance of telling the truth, and her husband 10 had already been granted withholding of removal on a Falun Gong 11 claim. See Majidi , 430 F.3d at 80 (“A petitioner must do more 12 than offer a plausible explanation for his inconsistent 13 statements to secure relief; he must demonstrate that a 14 reasonable fact-finder would be compelled to credit his 15 testimony.” (internal quotations omitted)). 16 Xu also faults the IJ for not considering her Falun Gong 17 claim and her husband’s testimony. The IJ’s decision contains 18 detailed descriptions of both, however, and the IJ specifically 19 concluded that, after “considering all the evidence,” there was 20 no “reasonable way to reconcile” the two different accounts of 216 persecution that Xu advanced. In re Xian Zhu Xu , No. A200 603 1 621, at 25 (Immig. Ct. N.Y.C. July 12, 2012). Although the IJ 2 stated that she relied on inconsistencies relating to the family 3 planning ground, the agency is not required to “expressly parse 4 or refute on the record each individual argument or piece of 5 evidence offered by the petitioner.” Zhi Yun Gao v. Mukasey , 6 508 F.3d 86, 87 (2d Cir. 2007)(per curiam)(internal quotation 7 marks omitted). 8 Xu’s final argument is that the agency inappropriately 9 applied the doctrine falsus in uno, falsus in omnibus because 10 the agency did not consider that her husband’s testimony 11 corroborated her claim and that Xu’s credible fear interview 12 was not reliable. The agency explicitly considered, however, 13 that Xu’s husband’s testimony corroborated her own and that her 14 husband was unable to clarify certain discrepancies in her 15 testimony and the record. See Immig. Ct. Dec. at 16-20. In 16 addition, as noted above, the agency did not err in relying on 17 Xu’s credible fear interview because it bore sufficient indicia 18 of reliability. Ming Zhang , 585 F.3d at 723-25. 19 Because the totality of the circumstances supports the 20 agency’s adverse credibility determination, and because all of 217 Xu’s claims relied on the same factual predicate, the 1 determination is dispositive of asylum, withholding of removal, 2 and CAT relief. See Paul v. Gonzales , 444 F.3d 148, 156 (2d 3 Cir. 2006) 4 For the foregoing reasons, the petition for review is 5 DENIED. Since we have completed our review, any stay of removal 6 that the Court previously granted in this petition is VACATED, 7 and any pending motion for a stay of removal in this petition 8 is DISMISSED as moot. Any pending request for oral argument 9 in this petition is DENIED in accordance with Federal Rule of 10 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 11 34.1(b). 12
FOR THE COURT: 13 Catherine O = Hagan Wolfe, Clerk 14