22-6367 Fu v. Garland BIA Nelson, IJ A206 085 920
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of March, two thousand twenty-four.
PRESENT: RICHARD C. WESLEY, GERARD E. LYNCH, BETH ROBINSON, Circuit Judges. _____________________________________
YE GUANG FU, Petitioner,
v. 22-6367 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Joshua Bardavid, Esq., New York, NY. FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Brianne Whelan Cohen, Senior Litigation Counsel; Lindsay Corliss, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Ye Guang Fu, a native and citizen of the People’s Republic of
China, seeks review of a June 28, 2022 decision of the BIA affirming a June 5, 2018
decision of an Immigration Judge (“IJ”) denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”). In re Ye Guang Fu, No. A206 085 920 (B.I.A. June 28, 2022), aff’g No. A206
085 920 (Immig. Ct. N.Y.C. June 5, 2018). We assume the parties’ familiarity with
the underlying facts and procedural history.
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). We review adverse credibility
determinations “under the substantial evidence standard,” Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and “the administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to 2 the contrary,” 8 U.S.C. § 1252(b)(4)(B).
“Considering the totality of the circumstances, and all relevant factors, a
trier of fact may base a credibility determination on . . . the consistency between
the applicant’s or witness’s written and oral statements (whenever made and
whether or not under oath, and considering the circumstances under which the
statements were made), the internal consistency of each such statement, the
consistency of such statements with other evidence of record . . . , and any
inaccuracies or falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim,
or any other relevant factor.” Id. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
credibility determination unless, from the totality of the circumstances, it is plain
that no reasonable fact-finder could make such an adverse credibility ruling.”
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891
F.3d at 76.
Substantial evidence supports the IJ’s adverse credibility determination.
Fu testified before the IJ that he was arrested, detained, interrogated, and beaten
for attending an underground church in China and that his wife had to pay a fine
to secure Fu’s release from prison. But Fu’s testimony was inconsistent with the
3 statements given at his credible fear interview at least with respect to who paid
the fine, whether he knew the amount of the fine when it was paid, and whether
he knew the full name of Jing Guang Chen, the individual who introduced him to
Christianity. In addition, during his credible fear interview, Fu entirely omitted
the allegation that he was beaten by police during his alleged interrogation, even
when the asylum officer conducting the interview asked him multiple times to
explain “anything” that happened during the interrogation.
Fu attempted to explain many of these inconsistencies and omissions by
testifying that he was confused and nervous during the credible fear interview.
But “[a] petitioner must do more than offer a plausible explanation for his
inconsistent statements to secure relief; he must demonstrate that a reasonable
fact-finder would be compelled to credit his testimony.” Majidi v. Gonzales, 430
F.3d 77, 80 (2d Cir. 2005) (internal quotation marks omitted) (quoting Zhou Yun
Zhang v. INS, 386 F.3d 66, 76 (2d Cir. 2004)). Fu has not shown that a reasonable
fact-finder would be compelled to credit his explanation based on confusion and
nerves.
Fu’s explanations for other inconsistencies were, themselves, inconsistent
with each other. For example, at one point in the hearing, Fu testified that he was
4 not sure why he had previously said that he did not know Chen’s full name
because he had “always known” his full name since meeting him in China. At
another point, however, he testified that he did not learn Chen’s full name until
after he arrived in the United States. The IJ was not compelled to credit either of
those explanations for why Fu had previously stated that he did not know Chen’s
full name.
Fu also argues that the IJ should not have considered the statements he
made at his credible fear interview because the interview record was not reliable
since the interview was conducted in Mandarin even though his best language is
Fuzhou. But he did not express a lack of understanding during the interview, he
confirmed that he understood the purpose of the interview, his application reflects
that he is fluent in Mandarin, and he admitted at the hearing that he understood
the Mandarin interpreter during the interview. Further, the interview record
contained sufficient indicia of reliability: the interview was memorialized in a
typewritten document that indicated the questions asked of Fu and the responses
that Fu gave, and the questions asked were designed to elicit the basis for Fu’s
asylum claim. For all those reasons, the IJ properly relied on the record of the
credible fear interview in assessing Fu’s credibility. See Ming Zhang v. Holder, 585
5 F.3d 715, 725 (2d Cir. 2009) (concluding that credible fear interview record was
reliable for purposes of assessing credibility where the interviewing officer
explained the purpose of the interview and informed petitioner that she could seek
clarification, the questions were designed to elicit a basis for an asylum claim, the
interview was memorialized in a typewritten document setting forth questions
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22-6367 Fu v. Garland BIA Nelson, IJ A206 085 920
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of March, two thousand twenty-four.
PRESENT: RICHARD C. WESLEY, GERARD E. LYNCH, BETH ROBINSON, Circuit Judges. _____________________________________
YE GUANG FU, Petitioner,
v. 22-6367 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Joshua Bardavid, Esq., New York, NY. FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Brianne Whelan Cohen, Senior Litigation Counsel; Lindsay Corliss, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Ye Guang Fu, a native and citizen of the People’s Republic of
China, seeks review of a June 28, 2022 decision of the BIA affirming a June 5, 2018
decision of an Immigration Judge (“IJ”) denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”). In re Ye Guang Fu, No. A206 085 920 (B.I.A. June 28, 2022), aff’g No. A206
085 920 (Immig. Ct. N.Y.C. June 5, 2018). We assume the parties’ familiarity with
the underlying facts and procedural history.
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). We review adverse credibility
determinations “under the substantial evidence standard,” Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and “the administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to 2 the contrary,” 8 U.S.C. § 1252(b)(4)(B).
“Considering the totality of the circumstances, and all relevant factors, a
trier of fact may base a credibility determination on . . . the consistency between
the applicant’s or witness’s written and oral statements (whenever made and
whether or not under oath, and considering the circumstances under which the
statements were made), the internal consistency of each such statement, the
consistency of such statements with other evidence of record . . . , and any
inaccuracies or falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim,
or any other relevant factor.” Id. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
credibility determination unless, from the totality of the circumstances, it is plain
that no reasonable fact-finder could make such an adverse credibility ruling.”
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891
F.3d at 76.
Substantial evidence supports the IJ’s adverse credibility determination.
Fu testified before the IJ that he was arrested, detained, interrogated, and beaten
for attending an underground church in China and that his wife had to pay a fine
to secure Fu’s release from prison. But Fu’s testimony was inconsistent with the
3 statements given at his credible fear interview at least with respect to who paid
the fine, whether he knew the amount of the fine when it was paid, and whether
he knew the full name of Jing Guang Chen, the individual who introduced him to
Christianity. In addition, during his credible fear interview, Fu entirely omitted
the allegation that he was beaten by police during his alleged interrogation, even
when the asylum officer conducting the interview asked him multiple times to
explain “anything” that happened during the interrogation.
Fu attempted to explain many of these inconsistencies and omissions by
testifying that he was confused and nervous during the credible fear interview.
But “[a] petitioner must do more than offer a plausible explanation for his
inconsistent statements to secure relief; he must demonstrate that a reasonable
fact-finder would be compelled to credit his testimony.” Majidi v. Gonzales, 430
F.3d 77, 80 (2d Cir. 2005) (internal quotation marks omitted) (quoting Zhou Yun
Zhang v. INS, 386 F.3d 66, 76 (2d Cir. 2004)). Fu has not shown that a reasonable
fact-finder would be compelled to credit his explanation based on confusion and
nerves.
Fu’s explanations for other inconsistencies were, themselves, inconsistent
with each other. For example, at one point in the hearing, Fu testified that he was
4 not sure why he had previously said that he did not know Chen’s full name
because he had “always known” his full name since meeting him in China. At
another point, however, he testified that he did not learn Chen’s full name until
after he arrived in the United States. The IJ was not compelled to credit either of
those explanations for why Fu had previously stated that he did not know Chen’s
full name.
Fu also argues that the IJ should not have considered the statements he
made at his credible fear interview because the interview record was not reliable
since the interview was conducted in Mandarin even though his best language is
Fuzhou. But he did not express a lack of understanding during the interview, he
confirmed that he understood the purpose of the interview, his application reflects
that he is fluent in Mandarin, and he admitted at the hearing that he understood
the Mandarin interpreter during the interview. Further, the interview record
contained sufficient indicia of reliability: the interview was memorialized in a
typewritten document that indicated the questions asked of Fu and the responses
that Fu gave, and the questions asked were designed to elicit the basis for Fu’s
asylum claim. For all those reasons, the IJ properly relied on the record of the
credible fear interview in assessing Fu’s credibility. See Ming Zhang v. Holder, 585
5 F.3d 715, 725 (2d Cir. 2009) (concluding that credible fear interview record was
reliable for purposes of assessing credibility where the interviewing officer
explained the purpose of the interview and informed petitioner that she could seek
clarification, the questions were designed to elicit a basis for an asylum claim, the
interview was memorialized in a typewritten document setting forth questions
and responses and was conducted with the aid of an interpreter, and the applicant
did not contend that she did not understand the questions).
Because it was not improper for the agency to consider the inconsistencies
between Fu’s hearing testimony and the statements at his credible fear interview,
there was substantial evidence to support the adverse credibility determination.
See Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single
inconsistency might preclude [a non-citizen] from showing that an IJ was
compelled to find him credible. Multiple inconsistencies would so preclude even
more forcefully.”); Xiu Xia Lin, 534 F.3d at 167 (noting that the “cumulative effect”
of multiple inconsistencies can support an adverse credibility determination).
The adverse credibility determination is dispositive of asylum, withholding of
removal, and CAT relief because all three claims are based on the same factual
predicate. See Hong Fei Gao, 891 F.3d at 76.
6 Finally, Fu’s argument that the agency should have considered his fear of
persecution based on his practice of Christianity in the United States
independently from the adverse credibility determination fails. First, because the
IJ’s adverse credibility determination was supported by substantial evidence,
there was no credible evidence to suggest that Fu would be “singled out” for
persecution. 1 Second, as the Government points out, to the extent that Fu argues
that the IJ should have considered whether he had shown a “pattern or practice”
of persecution of similarly situated people, see 8 C.F.R. § 1208.13(b)(2)(iii), he did
not raise that claim on appeal to the BIA, so the issue is unexhausted and not
properly before us. See Ud Din v. Garland, 72 F.4th 411, 419–20 & n.2 (2d Cir. 2023)
(explaining that the issue exhaustion requirement is a claim-processing rule that
is “mandatory in the sense that a court must enforce the rule if a party properly
raises it” (internal quotation marks omitted) (quoting Fort Bend County v. Davis,
587 U.S. ----, 139 S. Ct. 1843, 1849 (2019))).
1 Fu also submitted letters from his wife and a friend in China to corroborate his testimony, but the BIA concluded that those letters were entitled to minimal weight and were therefore insufficient to rehabilitate his testimony or independently establish his claim. Fu does not argue that we should give those letters greater weight, and, indeed, “[w]e defer to the agency’s determination of the weight afforded to [a non-citizen’s] documentary evidence,” Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013). 7 For the foregoing reasons, the petition for review is DENIED. All pending
motions and applications are DENIED and stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court