Chao v. Blanche

24-1408-ag Xiao-Chao v. Blanche BIA Hom, IJ A208 190 472 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 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 the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 10th day of November, two thousand 4 twenty-six. 5 6 PRESENT: 7 SUSAN L. CARNEY, 8 BETH ROBINSON, 9 MATTHEW A. SCHWARTZ, 10 Circuit Judges. 11 _____________________________________ 12 13 ZHUO XIAO-CHAO 14 Petitioner, 15 16 v. 24-1408-ag 17 NAC 18 TODD BLANCHE, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Zhen Liang Li, Esq., New York, NY. 1 FOR RESPONDENT: Brett A. Shumate, Principal Deputy Assistant 2 Attorney General; Brett F. Kinney, Senior 3 Litigation Counsel; Nehal H. Kamani, Trial 4 Attorney, Office of Immigration Litigation, 5 United States Department of Justice, 6 Washington, DC. 7 UPON DUE CONSIDERATION of this petition for review of a Board of 8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 9 DECREED that the petition for review is DENIED. 10 Petitioner Zhuo Xiao-Chao, a native and citizen of the People’s Republic of 11 China, seeks review of an April 22, 2024, decision of the BIA affirming an 12 October 22, 2019, decision of an Immigration Judge (“IJ”) denying his application 13 for asylum, withholding of removal, and relief under the Convention Against 14 Torture (“CAT”). In re Zhuo Xiao-Chao, No. A208 190 472 (B.I.A. Apr. 22, 2024), 15 aff’g No. A208 190 472 (Immig. Ct. N.Y. City Oct. 22, 2019). We assume the 16 parties’ familiarity with the underlying facts and procedural history. 17 We have reviewed both the IJ’s and the BIA’s opinions for the sake of 18 completeness. See Singh v. Bondi, 139 F.4th 189, 197 (2d Cir. 2025). We review an 19 adverse credibility determination for “substantial evidence” and must defer to 20 “the administrative findings of fact [as] conclusive unless any reasonable 21 adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 2  1 § 1252(b)(4)(B); see also Al Saidi v. Blanche, 185 F.4th 286, 296–97 (2d Cir. 2026). 2 “Considering the totality of the circumstances, and all relevant factors, a 3 trier of fact may base a credibility determination on the demeanor, candor, or 4 responsiveness of the applicant or witness, . . . the consistency between the 5 applicant’s or witness’s written and oral statements (whenever made and whether 6 or not under oath, and considering the circumstances under which the statements 7 were made), the internal consistency of each such statement, [and] the consistency 8 of such statements with other evidence of record (including the reports of the 9 Department of State on country conditions), . . . without regard to whether an 10 inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, 11 or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an 12 IJ’s credibility determination unless, from the totality of the circumstances, it is 13 plain that no reasonable fact-finder could make such an adverse credibility 14 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). 15 Petitioner alleged that he had a well-founded fear of past and future 16 persecution in China because police detained and beat him for attending an 17 unregistered church in China. Substantial evidence supports the agency’s 18 determination that Petitioner was not credible. 3  1 The agency reasonably relied on Petitioner’s evasive and inconsistent 2 testimony about his educational history, including his age when he ended his 3 studies, and whether he lied in an application for a student visa. “We give 4 particular deference to credibility determinations that are based on the 5 adjudicator’s observation of the applicant’s demeanor, in recognition of the fact 6 that the IJ’s ability to observe . . . demeanor places h[im] in the best position to 7 evaluate whether apparent problems . . . suggest a lack of credibility or, rather, can 8 be attributed to an innocent cause such as difficulty understanding the question.” 9 Jin Chen v. U.S. Dep’t of Just., 426 F.3d 104, 113 (2d Cir. 2005). “We can be still 10 more confident in [its] review of observations about an applicant’s demeanor 11 where, as here, they are supported by specific examples of inconsistent 12 testimony.” Li Hua Lin v. U.S. Dep’t of Just., 453 F.3d 99, 109 (2d Cir. 2006). 13 Petitioner suggests that the inconsistencies regarding his age when he ended 14 schooling might have been the result of a translation error. However, he did not 15 raise this argument on appeal to the BIA and we therefore may not consider it. 16 See Vera Punin v. Garland, 108 F.4th 114, 124 (2d Cir. 2024) (“[W]hen an argument 17 made to this Court cannot be closely matched up with a specific argument made 18 to the BIA, it has not been properly exhausted and we cannot hear it.”). 4  1 Further, as the IJ found, Petitioner’s testimony showed a willingness to lie 2 to obtain immigration benefits; that finding alone also constitutes substantial 3 evidence for the agency’s adverse credibility determination. Siewe v. Gonzales, 4 480 F.3d 160, 170 (2d Cir. 2007); see also Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d 5 Cir. 2020) (“[E]ven a single inconsistency might preclude an alien from showing 6 that an IJ was compelled to find him credible. Multiple inconsistencies would so 7 preclude even more forcefully.”). 8 Similarly, Petitioner does not challenge and therefore abandons review of 9 the agency’s findings that he testified inconsistently regarding whether he was 10 home when police visited his house in 2015, that he was surprisingly uniformed 11 regarding his sister’s asylum claim based on a similar assertion of religious 12 persecution, and that he failed to corroborate his church attendance in the United 13 States. See Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“We consider 14 abandoned any claims not adequately presented in an appellant’s brief, and an 15 appellant’s failure to make legal or factual arguments constitutes abandonment.” 16 (citation modified)). Therefore, those findings stand as additional substantial 17 evidence supporting the adverse credibility determination. 8 U.S.C. 18 § 1158(b)(1)(B)(iii); Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An 5 1 applicant’s failure to corroborate his or her testimony may bear on credibility, 2 because the absence of corroboration in general makes an applicant unable to 3 rehabilitate testimony that has already been called into question.”). 4 In sum, substantial evidence supports the adverse credibility 5 determination. 1 See 8 U.S.C. § 1158(b)(1)(B)(iii); Jin Chen, 426 F.3d at 113; Siewe, 6 480 F.3d at 170; Likai Gao, 968 F.3d at 145 n.8. The adverse credibility 7 determination is dispositive of asylum, withholding of removal, and CAT relief 8 because all three forms of relief are based on the same factual predicate. Hong Fei 9 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018), abrogated on other grounds by Al Saidi, 10 185 F.4th at 297. 11 1 We reached this conclusion without relying on the agency’s finding that the petitioner was inconsistent about the order of his name. See Lianping Li v. Lynch, 839 F.3d 144, 149 (2d Cir. 2016) (“When a[] . . . decision contains errors, we may . . . deem remand futile . . . if [as here] (1) substantial evidence in the record . . . supports the IJ’s finding that petitioner lacked credibility, and (2) disregarding those aspects of the IJ’s reasoning that are tainted by error, we can state with confidence that the IJ would adhere to his decision were the petition remanded.” (quotation marks omitted)). 6 1 For the foregoing reasons, the petition for review is DENIED. All pending 2 motions and applications are DENIED and stays VACATED. 3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5 Clerk of Court 7