Jun QIAN, Petitioner, v. Eric H. HOLDER, JR., United States Attorney General, Respondent, 538 F. App'x 87

SUMMARY ORDER Petitioner Jun Qian, a native and citizen of China, seeks review of a July 23, 2012 decision of the BIA affirming a May 4, 2011 decision of the Immigration Judge (“IJ”), denying Qian’s application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”)- In re Jun Qian, No. [ AXXX XXX XXX ] (B.I.A. July 28, 2012), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City May 4, 2011). We assume the parties’ familiarity with the underlying facts and procedural history in this case. Under the circumstances of this case, we review the decisions of both the IJ and the BIA.

See Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). For applications like this one, governed by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his account, and inconsistencies in his statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (B.I.A.2007).

Analyzed under these standards, the agency’s adverse credibility determination is supported by substantial evidence. In finding Qian not credible, the IJ reasonably relied on inconsistencies between his testimony, asylum application, and documentary evidence as to when he had surgery and when he was released from the hospital. Contrary to Qian’s contention, the IJ did consider his explanation that he was mistaken about the relevant dates because he was nervous.

However, given the glaring inconsistencies, both within Qian’s testimony, and between his testimony, his asylum application, and his documentary evidence, which he was never able to reconcile, the agency was not required to accept this explanation. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005) (holding that the agency need not credit an applicant’s explanations for inconsistent testimony unless those explanations would compel a reasonable fact-finder to do so).

This is all the more true where, as here, Qian also attempted to explain the inconsistencies by testifying that his asylum application contained the wrong date because his father (who remains in China) had made a mistake. There is no merit to Qian’s argument that the IJ erred by relying on minor inconsistencies. Under the REAL ID Act, “an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the ‘totality of the circumstances’ establishes that an asylum applicant is not credible.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008) (emphasis in original).

Moreover, Qian’s inconsistencies cannot be considered minor. Based on the different dates he provided for his release from the hospital, he variously asserted that he had been hospitalized for two days, two weeks, and one month following surgery. Finally, Qian contends that the agency’s decision is inconsistent with the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (the “U.N. Handbook”), which provides that untrue statements, alone, are not a sufficient basis for denying refugee status. However, the U.N.

Handbook is not binding on either the agency or this Court. See INS v. Aguirre-Aguirre, 526 U.S. 415, 427, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). Accordingly, substantial evidence supports the agency’s adverse credibility determination. See 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Having reasonably found that Qian failed to establish eligibility for asylum on credibility grounds, the agency did not err in denying withholding of removal- and relief under the CAT, as these claims shared the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Yang v. U.S.

Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).