The opinion
15-465
Xue v. Lynch
BIA
Montante, IJ
A077 977 252
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 28th day of April, two thousand sixteen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 XING DI XUE,
14 Petitioner,
15
16 v. 15-465
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lee B. Ratner, Law Offices of Michael
24 Brown, PC, New York, New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Janice
28 K. Redfern, Senior Litigation
29 Counsel; Christina Parascandola,
30 Trial Attorney, Office of
1 Immigration Litigation, United
2 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 Xing Di Xue, a native and citizen of the People’s
10 Republic of China, seeks review of a February 2, 2015, decision
11 of the BIA affirming a September 4, 2013, decision of an
12 Immigration Judge (“IJ”) denying Xue’s application for asylum,
13 withholding of removal, and relief under the Convention Against
14 Torture (“CAT”). In re Xing Di Xue, No. A077 977 252 (B.I.A.
15 Feb. 2, 2015), aff’g No. A077 977 252 (Immig. Ct. Buffalo Sept.
16 4, 2013). We assume the parties’ familiarity with the
17 underlying facts and procedural history in this case.
18 Under the circumstances of this case, we have reviewed the
19 IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S.
20 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
21 applicable standards of review are well established. See 8
22 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
23 (2d Cir. 2009 ); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
24 (2d Cir. 2008).
2
1 Xue’s sole challenge to the agency’s adverse credibility
2 determination is that the IJ erred in relying on inconsistent
3 statements in his initial removal proceeding to find him not
4 credible in his remanded proceeding because the factual bases
5 for his asylum claims differed between the two proceedings. He
6 contends that his initial hearing focused on his wife’s forced
7 sterilization and his remanded hearing focused on his unpaid
8 family planning fine. Xue’s argument is without merit.
9 At his initial merits hearing, Xue asserted eligibility for
10 relief based on both his wife’s alleged forced sterilization
11 and their fines for having violated the family planning policy.
12 During his merits hearing on remand in 2010, Xue testified that
13 family planning officials continued to seek payment of the
14 unpaid fines levied in 1992. Given that the claims presented
15 at both hearings were based on the same factual predicate, the
16 agency did not err in relying on the inconsistency findings from
17 Xue’s first hearing to find him not credible at the conclusion
18 of his second hearing. See Paul v. Gonzales, 444 F.3d 148,
19 154-57 (2d Cir. 2006).
20 Xue does not challenge the specific inconsistency findings
21 in his brief. Those findings, which are supported by the
22 record, thus stand as a valid basis for the adverse credibility
3
1 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
2 Lin, 534 F.3d at 165-66. That determination is dispositive of
3 Xue’s claims for asylum, withholding of removal, and CAT relief.
4 See Paul, 444 F.3d at 156-57.
5 We may not consider Xue’s due process claim because he did
6 not raise it on appeal to the BIA. See Severino v. Mukasey,
7 549 F.3d 79, 83 (2d Cir. 2008).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument
13 in this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O=Hagan Wolfe, Clerk
18
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