15-3550
     Xie v. Lynch
                                                                                       BIA
                                                                                   Segal, IJ
                                                                               A205 027 476

                         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
 4   1st day of November, two thousand sixteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            JOSÉ A. CABRANES,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   YUNFENG XIE,
14            Petitioner,
15
16                  v.                                               15-3550
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Khaghendra        Gharti-Chhetry,            New
24                                       York, N.Y.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Edward
28                                       E.   Wiggers,   Senior   Litigation
29                                       Counsel; Matthew A. Connelly, Trial
30                                       Attorney, Office of Immigration
31                                       Litigation,      United      States
32                                       Department of Justice, Washington,
33                                       D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    DENIED.

5        Petitioner Yunfeng Xie, a native and citizen of the

6    People’s Republic of China, seeks review of an October 6, 2015,

7    decision of the BIA, affirming a January 9, 2014, decision of

8    an Immigration Judge (“IJ”) denying Xie’s application for

9    asylum, withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).      In re Yunfeng Xie, No. A205 027 476

11   (B.I.A. Oct. 6, 2015), aff’g No. A205 027 476 (Immig. Ct. N.Y.

12   City Jan. 9, 2014).      We assume the parties’ familiarity with

13   the underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed both

15   the IJ’s and BIA’s decisions.     Guan v. Gonzales, 432 F.3d 391,

16   394 (2d Cir. 2005).   The applicable standards of review are well

17   established.    See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

18   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

19       For asylum applications like Xie’s, governed by the REAL

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

21   circumstances,”   base    a   credibility    finding   on   an   asylum

22   applicant’s    “demeanor,     candor,   or   responsiveness,”      and

                                       2
1    inconsistencies in his statements, “without regard to whether”

2    those inconsistencies go “to the heart of the applicant’s

3    claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d
4    at 163-64.   “We defer . . . to an IJ’s credibility determination

5    unless, from the totality of the circumstances, it is plain that

6    no   reasonable   fact-finder   could   make   such    an   adverse

7    credibility ruling.”      Xiu Xia Lin, 534 F.3d at 167.          As

8    discussed below, the adverse credibility determination rests

9    on substantial evidence.     Id. at 165.

10        The agency reasonably rested its credibility determination

11   on inconsistencies concerning the day of the month Xie was

12   supposed to pay the police protection fee, an event central to

13   his claim of persecution.    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

14   Xia Lin, 534 F.3d at 167; see also Ye v. Dep’t of Homeland Sec.,

15   446 F.3d 289, 295 (2d Cir. 2006) (holding that material

16   inconsistency related to example of alleged persecution is

17   substantial evidence).    Xie testified that the fee was due on

18   the 28th of each month.     When confronted with the collection

19   notice in the record reflecting that the fee was due on the 5th

20   of each month, Xie responded, “Well, I forgot.        It was a long

21   time ago.”   The IJ was not required to credit Xie’s explanation

22   that his memory had faded given that the fee was pivotal to his

                                     3
1    claim.   “A petitioner must do more than offer a plausible

2    explanation for his inconsistent statements to secure relief;

3    he must demonstrate that a reasonable fact-finder would be

4    compelled to credit his testimony.”     Majidi v. Gonzales, 430

5 F.3d 77, 80 (2d Cir. 2005) (quotation marks omitted).

6        The agency also reasonably relied on inconsistencies

7    concerning the date Xie’s wife paid the fine to secure his

8    release from custody.     Xiu Xia Lin, 534 F.3d at 167.      Xie

9    testified that he was first arrested in January 2010, and that

10   his wife paid 8,000 yuan for his release.   On cross examination,

11   however, Xie testified that his wife paid the fine two years

12   earlier, in January 2008.   He then confirmed that 2008 was the

13   correct date.   When confronted with the fine receipt dated

14   January 8, 2010, Xie said that his testimony was wrong, and

15   asserted that the “back and forth” questioning confused him.

16   Xie’s explanation on appeal—that he “clearly testified that the

17   fine was paid after his first arrest”—does not account for the

18   inconsistent dates he provided regarding that arrest.        See

19   Majidi, 430 F.3d at 80.

20       The adverse credibility determination is further supported

21   by inconsistencies concerning the date Xie received medical

22   treatment.   Xiu Xia Lin, 534 F.3d at 167.    Xie’s testimony on

                                     4
1    this point again called into question his first arrest.            He

2    testified that he received medical treatment in January 2008,

3    following his first arrest.          When asked whether he sought

4    medical treatment in January 2010 (which, according to his

5    application and previous testimony, was the actual date of his

6    first arrest), the record reflects a long pause.             Xie then

7    corrected himself and stated that he sought medical treatment

8    in January 2010.    Xie again professed confusion based on the

9    “back and forth” questioning.    The IJ was not required to credit

10   this explanation because it does not explain why Xie could not

11   remember when events occurred.        See Majidi, 430 F.3d at 80.

12        Given the multiple inconsistencies concerning matters

13   central to Xie’s claim of persecution, it cannot be said “that

14   no   reasonable   fact-finder   could    make   such   a   credibility

15   ruling.”     Xiu Xia Lin, 534 F.3d at 167.         That finding is

16   dispositive of asylum, withholding of removal, and CAT relief

17   because all three claims were based on the same factual

18   predicate.    Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

19   2006).

20        For the foregoing reasons, the petition for review is

21   DENIED.

22                                   FOR THE COURT:
23                                   Catherine O’Hagan Wolfe, Clerk
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