        12-480
        Di v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A089 906 269
                        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
 2      for the Second Circuit, held at the Thurgood Marshall United
 3      States Courthouse, 40 Foley Square, in the City of New York,
 4      on the 28th day of March, two thousand thirteen.
 5
 6      PRESENT:
 7               JOSÉ A. CABRANES,
 8               BARRINGTON D. PARKER,
 9               RICHARD C. WESLEY,
10                    Circuit Judges.
11      _____________________________________
12
13      XIAN HUI DI,
14               Petitioner,
15
16                     v.                                      12-480
17                                                             NAC
18      ERIC H. HOLDER, JR., UNITED STATES
19      ATTORNEY GENERAL,
20               Respondent.
21      _____________________________________
22
23      FOR PETITIONER:                Lee Ratner, New York, New York.
24
25      FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
26                                     Attorney General; Richard M. Evans,
27                                     Assistant Director; Jeffrey J.
28                                     Bernstein, Trial Attorney, Office of
 1                            Immigration Litigation, Civil
 2                            Division, United States Department
 3                            of Justice, 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

 8   is DENIED.

 9       Xian Hui Di, a native and citizen of the People’s

10   Republic of China, seeks review of a January 18, 2012, order

11   of the BIA, affirming the March 17, 2010, decision of

12   Immigration Judge (“IJ”) Barbara A. Nelson, which denied her

13   application for asylum, withholding of removal, and relief

14   under the Convention Against Torture (“CAT”).    In re Xian

15   Hui Di, No. A089 906 269 (B.I.A. Jan. 18, 2012), aff’g No.

16   A089 906 269 (Immig. Ct. N.Y. City Mar. 17, 2010).    We

17   assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       Under the circumstances of this case, the Court should

20   consider both the IJ’s and the BIA’s opinions “for the sake

21   of completeness.”    Zaman v. Mukasey, 514 F.3d 233, 237 (2d

22   Cir. 2008).    The applicable standards of review are well-

23   established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

24   Holder, 562 F.3d 510, 513 (2d Cir. 2009).



                                    2
 1       For asylum applications such as Di’s, governed by the

 2   REAL ID Act, the agency may, considering the totality of the

 3   circumstances, base a credibility finding on an asylum

 4   applicant’s demeanor, the plausibility of his   account, and

 5   inconsistencies in his statements, without regard to whether

 6   they go “to the heart of the applicant’s claim.”   8 U.S.C.

 7   § 1158(b)(1)(B)(iii).

 8       In finding Di not credible, the agency reasonably

 9   relied in part on her demeanor, finding that Di’s testimony

10   was often evasive, hesitant, and non-responsive. See Majidi

11   v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).   The IJ’s

12   demeanor findings were further supported by specific

13   examples of Di’s inconsistent testimony.   See Li Hua Lin v.

14   U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).     In

15   this regard, the agency reasonably found that Di failed to

16   provide a consistent account of her employment history in

17   China or to testify consistently regarding the year in which

18   she was unable to work because she was taking care of her

19   sick father.   See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167

20   (2d Cir. 2008) (per curiam).   Furthermore, the agency

21   reasonably relied on a discrepancy between Di’s asylum

22   application and testimony with regard to whether Di had been


                                    3
 1   in hiding continuously from the time that she discovered she

 2   was pregnant with her second child until that pregnancy

 3   allegedly was terminated, see Iouri v. Ashcroft, 487 F.3d

 4   76, 81-82 (2d Cir. 2007), as well as on an inconsistency

 5   between Di’s testimony and that of her witness, Pastor Xao

 6   Deng Pang, regarding the extent of their communications

 7   prior to her merits hearing, see Xiu Xia Lin, 534 F.3d at

 8   167.    A reasonable fact finder would not be compelled to

 9   credit Di’s explanations for these inconsistencies.       Majidi,

10   430 F.3d at 80-81.

11          The adverse credibility determination is further

12   supported by Di’s failure to present adequate corroboration

13   of her claims of a forced abortion; an arrest, detention,

14   and beating in 2007 for participating in underground church

15   activities; and joining the Faith Bible Church after her

16   arrival in the United States.       See Biao Yang v. Gonzales,

17   496 F.3d 268, 273 (2d Cir. 2007).

18          Ultimately, because a reasonable fact-finder would not

19   be compelled to conclude to the contrary regarding the

20   agency’s demeanor, inconsistency, and lack of corroboration

21   findings, the agency’s adverse credibility determination is

22   supported by substantial evidence.       See Xiu Xia Lin, 534


                                     4
 1   F.3d at 165-66.   The agency’s denial of Di’s application for

 2   asylum, withholding of removal, and CAT relief was not in

 3   error as all three claims shared the same factual predicate.

 4   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006)

 5   (withholding of removal); Xue Hong Yang v. U.S. Dep’t of

 6   Justice, 426 F.3d 520, 523 (2d Cir. 2006) (CAT).

 7       For the foregoing reasons, the petition for review is

 8   DENIED.   As we have completed our review, any stay of

 9   removal that the Court previously granted in this petition

10   is VACATED, and any pending motion for a stay of removal in

11   this petition is DISMISSED as moot. Any pending request for

12   oral argument in this petition is DENIED in accordance with

13   Federal Rule of Appellate Procedure 34(a)(2), and Second

14   Circuit Local Rule 34.1(b).

15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe, Clerk
17




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