BING YAN LI, Shu Qi Wu, Petitioners, v. Eric H. HOLDER, Jr., United States, Attorney General, Respondent, 538 F. App'x 70

SUMMARY ORDER Petitioners Bing Yan Li, and her husband Shu Qi Wu, natives and citizens of the People’s Republic of China, seek review of a February 2, 2012, decision of the BIA affirming the May 14, 2010, decision of Immigration Judge (“IJ”) Patricia A. Rohan, which denied their application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Bing Yan Li & Shu Qi Wu Nos. [ AXXX XXX XXX ]/329 (B.I.A. Feb. 2, 2012), ajfg Nos. [ AXXX XXX XXX ]/329 (Immig. Ct. N.Y. City May 14, 2010). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we have reviewed the IJ’s decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009).

For applications such as the petitioners’, governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005, the agency may, “[c]onsidering the totality of the circumstances, ... base a credibility determination on the demeanor, candor, or responsiveness of the applicant,” or any inconsistency or omission in an applicant’s statements, “without regard to whether the inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” See 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008) (per curiam).

The petitioners challenge the agency’s denial of withholding of removal, in which the agency discredited their testimony based on their hesitant or non-responsive demeanor and contradictions regarding the time, circumstances, and location of their practice of Falun Gong. The petitioners do not dispute the IJ’s demeanor finding, but contend that the agency faded to credit their explanations—that Li was nervous and Wu was “not in a right state of mind.” However, the petitioners’ argument misapprehends the “particular deference” afforded to an assessment of demeanor, Majidi v.

Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005), because demeanor is “paradigmatically the sort of evidence that a fact-finder is best positioned to evaluate,” Li Zu Guan v. INS, 453 F.3d 129, 139-40 (2d Cir.2006) (citing Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.2005)). Even assuming the petitioners’ explanations for their demeanor were plausible, where the demeanor findings were not based on a misstatement of the record, but rather were “tethered to the evidentiary record,” Siewe v.

Gonzales, 480 F.3d 160, 168-69 (2d Cir.2007), the petitioners “must do more than offer a plausible explanation ... to secure relief; [they] must demonstrate that a reasonable fact-finder would be compelled to credit [their] testimony,” Majidi, 430 F.3d at 80 (internal quotation marks and citations omitted). Accordingly, the petitioners’ explanations for their poor demeanor are inadequate to overcome the “particular deference” due to those findings. Id. The petitioners also contend that the IJ failed to consider the totality of the circumstances regarding their explanations for their discrepant testimony.

During the merits hearing, Wu testified that he and Li practiced Falun Gong together in parks, contradicting Li’s testimony, but later testified that Li did not practice Falun Gong in parks. Wu explained his inconsistent testimony by stating that he “probably forgot [he] said that.” However, this explanation was inadequate to compel a reasonable factfinder to credit his testimony because it does not explain his inconsistent statements if he was testifying truthfully. See Majidi, 430 F.3d at 80-81.

In their brief, the petitioners also explain Wu’s further inconsistent testimony that he last practiced Falun Gong at 2:00 in the afternoon, whereas Li testified it was between 5:00 or 6:00 in the evening—by asserting that Wu’s time was only an estimation.

Similarly, this explanation is inadequate to compel a contrary conclusion because it fails to address other inconsistent aspects of his testimony—the discrepancy between his and Li’s testimony regarding what their children were doing while they were practicing Falun Gong— and is otherwise insufficiently compelling to require a reasonable fact-finder to credit it. Id. Accordingly, the agency properly grounded its adverse credibility determination on those inconsistencies.

See Xiu Xia Lin, 534 F.3d at 167 (the agency “may rely on any inconsistency or omission in making an adverse credibility determination as long as the ‘totality of the circumstances’ establishes the asylum applicant is not credible”) (emphasis in original) (quoting 8 U.S.C. § 1158(b)(l)(B)(iii)); see also 8 U.S.C. § 1252(b)(4)(B) (providing that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”).

Given these inconsistency and demeanor findings, the totality of the circumstances supports the agency’s adverse credibility determination, 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin, 534 F.3d at 167, which is dispositive of petitioners’ application for withholding of removal, see Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). For the foregoing reasons, the petition for review is DENIED.