# Xing Di Xue v. Lynch > Court of Appeals for the Second Circuit · April 28, 2016 · 648 F. App'x 36 URL: https://www.frixlaw.com/law-library/cases/3198724 ## Case - **Full name:** XING DI XUE, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent - **Court:** Court of Appeals for the Second Circuit - **Decided:** April 28, 2016 - **Citations:** 648 F. App'x 36 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Parker, Wesley, Lohier - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3198724 ## Opinion text 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 4 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3198724. Public record. Not legal advice.