He v. Whitaker

17-666 He v. Whitaker BIA Loprest, IJ A206 068 710 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 3rd day of May, two thousand nineteen. [5] 6 PRESENT: 7 PIERRE N. LEVAL, 8 JOSÉ A. CABRANES, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _____________________________________ [12] 13 QIU DI HE, 14 Petitioner, [15] 16 v. 17-666 17 NAC 18 WILLIAM P. BARR, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ [22] 23 FOR PETITIONER: Joshua Bardavid, New York, 24 NY. [25] 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Anthony P. 28 Nicastro, Assistant Director; 29 Joanna L. Watson, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 32 Justice, Washington, DC. 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 4 is DENIED. 5 Petitioner Qiu Di He, a native and citizen of the 6 People’s Republic of China, seeks review of a February 21, 7 2017, decision of the BIA affirming a July 13, 2016, decision 8 of an Immigration Judge (“IJ”) denying He’s application for 9 asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”). In re Qiu Di He, No. 11 A206 068 710 (B.I.A. Feb. 21, 2017), aff’g No. A206 068 710 12 (Immig. Ct. N.Y. City July 13, 2016). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 in this case. 15 Under the circumstances of this case, we have reviewed 16 both the IJ’s and the BIA’s opinions “for the sake of 17 completeness.” Wangchuck v. Dep’t of Homeland Security, 448 18 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 19 review are well established. See 8 U.S.C. § 1252 (b)(4)(B); 20 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 21 “Considering the totality of the circumstances, and all 22 relevant factors, a trier of fact may base a credibility [2] 1 determination on the demeanor, candor, or responsiveness of 2 the applicant or witness, . . . the consistency between the 3 applicant’s or witness’s written and oral statements . . . , 4 the internal consistency of each such statement, [and] the 5 consistency of such statements with other evidence of record 6 . . . without regard to whether an inconsistency, inaccuracy, 7 or falsehood goes to the heart of the applicant’s claim.” [8] 8 U.S.C. § 1158 (b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163 - 9 64. Substantial evidence supports the agency’s determination 10 that He was not credible as to his claim that family planning 11 officials detained and beat him for resisting the family 12 planning policy. 13 The agency reasonably relied in part on He’s demeanor. 14 See 8 U.S.C. § 1158 (b)(1)(B)(iii); Majidi v. Gonzales, 430 15 F.3d 77 , 81 n.1 (2d Cir. 2005) (recognizing that particular 16 deference is given to the trier of fact’s assessment of 17 demeanor). Contrary to He’s contention, the IJ provided 18 specific examples to support the demeanor finding, noting 19 that He could not provide a clear picture of the order of 20 events surrounding his arrest and his wife’s purported forced 21 abortion and gave vague and unresponsive answers to questions 22 about that time. That finding is supported by the record. [3] 1 The demeanor finding and the overall credibility 2 determination are bolstered by record inconsistencies. See 3 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d 4 Cir. 2006). The agency reasonably found that He’s 5 testimony was inconsistent regarding whether (1) he and his 6 wife travelled together to Fuzhou where they were 7 confronted by family planning officials, (2) they visited 8 He’s ailing father together, (3) family planning officials 9 dragged him from his home, arrested him after struggling to 10 enter his brother’s home, or arrested him after spotting 11 him standing outside his brother’s home, and (4) his wife 12 turned herself in to family planning officials to secure 13 He’s release from detention or was physically removed from 14 his brother’s home. When provided an opportunity to 15 explain his inconsistent statements, He simply changed his 16 story rather than provide a compelling explanation. See [17] 8 U.S.C. § 1158 (b)(1)(B)(iii); see also Majidi, 430 F.3d at 18 80 (“A petitioner must do more than offer a plausible 19 explanation for his inconsistent statements to secure 20 relief; he must demonstrate that a reasonable fact-finder 21 would be compelled to credit his testimony.” (internal 22 quotation marks omitted)). [4] 1 Given the demeanor and inconsistency findings, the 2 agency’s adverse credibility determination is supported by 3 substantial evidence and was dispositive of asylum, 4 withholding of removal, and CAT relief. See Paul v. Gonzales, [5] 444 F.3d 148, 156-57 (2d Cir. 2006). 6 For the foregoing reasons, the petition for review is 7 DENIED. 8 FOR THE COURT: 9 Catherine O’Hagan Wolfe 10 Clerk of Court