18-2049 Guan v. Garland BIA Poczter, IJ A202 024 043
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 TO 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 21st day of April, two thousand twenty-one. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 GERARD E. LYNCH, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 YANFANG GUAN, 14 Petitioner, 15 16 v. 18-2049 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Troy Nader Moslemi, Esq., 24 Flushing, NY. 25 26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; Linda 28 S. Wernery, Assistant Director; 29 Gerald M. Alexander, Trial 30 Attorney, Office of Immigration 1 Litigation, United States 2 Department of Justice, Washington, 3 DC. 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 Petitioner Yanfang Guan, a native and citizen of the
10 People’s Republic of China, seeks review of a June 19, 2018,
11 decision of the BIA affirming a July 31, 2017, decision of an
12 Immigration Judge (“IJ”) denying Guan’s application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Yanfang Guan, No.
15 A202 024 043 (B.I.A. June 19, 2018), aff’g No. A202 024 043
16 (Immig. Ct. N.Y. City July 31, 2017). We assume the parties’
17 familiarity with the underlying facts and procedural history.
18 Under the circumstances, we have considered both the IJ’s
19 and the BIA’s opinions “for the sake of completeness.”
20 Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528
21 (2d Cir. 2006). The applicable standards of review are well
22 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
23 Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
24 “Considering the totality of the circumstances, and all
2 1 relevant factors, a trier of fact may base a credibility
2 determination on . . . the inherent plausibility of the
3 applicant’s or witness’s account, the consistency between the
4 applicant’s or witness’s written and oral statements . . . ,
5 [and] the internal consistency of each such statement . . .
6 without regard to whether an inconsistency, inaccuracy, or
7 falsehood goes to the heart of the applicant’s claim, or any
8 other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
9 defer . . . to an IJ’s credibility determination unless, from
10 the totality of the circumstances, it is plain that no
11 reasonable fact-finder could make such an adverse credibility
12 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
13 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial
14 evidence supports the agency’s determination that Guan was
15 not credible as to her claim that police detained and beat
16 her for attending an unauthorized church gathering in China
17 and would target her in the future on account of her continued
18 religious practice.
19 In finding Guan not credible the agency reasonably relied
20 on inconsistencies between her asylum interview and merits
21 hearing testimony regarding how long her mother was detained
22 for religious reasons and when Guan began attending church in
3 1 the United States. See 8 U.S.C. § 1158(b)(1)(B)(iii); see
2 also Diallo v. Gonzales, 445 F.3d 624, 632 (2d Cir. 2006)
3 (concluding that “asylum . . . interviews do not call for
4 special scrutiny, as airport interviews do” and finding
5 reliable for credibility purposes an interview record that
6 “contains a meaningful, clear, and reliable summary of the
7 statements made” (internal quotation marks and brackets
8 omitted)(emphasis in original)). The agency also reasonably
9 relied on the omission from Guan’s application and her
10 mother’s letter of her assertion that police visited her
11 mother looking for Guan three times after Guan left China,
12 particularly given that the application requested information
13 regarding fear of future harm and her mother’s letter included
14 less pertinent information. See 8 U.S.C.
15 § 1158(b)(1)(B)(iii); see also Hong Fei Gao, 891 F.3d at 78–
16 79 (providing that the “probative value of the omission”
17 depends on whether the omitted facts are ones that an
18 applicant or witness “would reasonably have been expected to
19 disclose under the relevant circumstances”). The agency also
20 reasonably relied on Guan’s inconsistent evidence regarding
21 whether her witness attended her baptism in the United States
22 and her implausible testimony that she did not know her
4 1 cousin’s wife’s name despite their close contact over four
2 years. See 8 U.S.C. § 1158(b)(1)(B)(iii); Siewe v. Gonzales,
3 480 F.3d 160, 169 (2d Cir. 2007) (recognizing that adverse
4 credibility determination may be based on inherent
5 implausibility if the finding “is tethered to the evidentiary
6 record” or “record facts . . . viewed in the light of common
7 sense and ordinary experience”). Guan did not provide
8 compelling explanations for the inconsistencies and
9 implausible testimony. See Majidi v. Gonzales, 430 F.3d 77,
10 80 (2d Cir. 2005) (“A petitioner must do more than offer a
11 plausible explanation for his inconsistent statements to
12 secure relief; he must demonstrate that a reasonable fact-
13 finder would be compelled to credit his testimony.” (internal
14 quotation marks omitted)(emphasis in original)).
15 Having questioned Guan’s credibility, the agency
16 reasonably relied further on her failure to rehabilitate her
17 testimony with reliable corroborating evidence. See Biao
18 Yang v.
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18-2049 Guan v. Garland BIA Poczter, IJ A202 024 043
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 TO 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 21st day of April, two thousand twenty-one. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 GERARD E. LYNCH, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 YANFANG GUAN, 14 Petitioner, 15 16 v. 18-2049 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Troy Nader Moslemi, Esq., 24 Flushing, NY. 25 26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; Linda 28 S. Wernery, Assistant Director; 29 Gerald M. Alexander, Trial 30 Attorney, Office of Immigration 1 Litigation, United States 2 Department of Justice, Washington, 3 DC. 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 Petitioner Yanfang Guan, a native and citizen of the
10 People’s Republic of China, seeks review of a June 19, 2018,
11 decision of the BIA affirming a July 31, 2017, decision of an
12 Immigration Judge (“IJ”) denying Guan’s application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Yanfang Guan, No.
15 A202 024 043 (B.I.A. June 19, 2018), aff’g No. A202 024 043
16 (Immig. Ct. N.Y. City July 31, 2017). We assume the parties’
17 familiarity with the underlying facts and procedural history.
18 Under the circumstances, we have considered both the IJ’s
19 and the BIA’s opinions “for the sake of completeness.”
20 Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528
21 (2d Cir. 2006). The applicable standards of review are well
22 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
23 Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
24 “Considering the totality of the circumstances, and all
2 1 relevant factors, a trier of fact may base a credibility
2 determination on . . . the inherent plausibility of the
3 applicant’s or witness’s account, the consistency between the
4 applicant’s or witness’s written and oral statements . . . ,
5 [and] the internal consistency of each such statement . . .
6 without regard to whether an inconsistency, inaccuracy, or
7 falsehood goes to the heart of the applicant’s claim, or any
8 other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
9 defer . . . to an IJ’s credibility determination unless, from
10 the totality of the circumstances, it is plain that no
11 reasonable fact-finder could make such an adverse credibility
12 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
13 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial
14 evidence supports the agency’s determination that Guan was
15 not credible as to her claim that police detained and beat
16 her for attending an unauthorized church gathering in China
17 and would target her in the future on account of her continued
18 religious practice.
19 In finding Guan not credible the agency reasonably relied
20 on inconsistencies between her asylum interview and merits
21 hearing testimony regarding how long her mother was detained
22 for religious reasons and when Guan began attending church in
3 1 the United States. See 8 U.S.C. § 1158(b)(1)(B)(iii); see
2 also Diallo v. Gonzales, 445 F.3d 624, 632 (2d Cir. 2006)
3 (concluding that “asylum . . . interviews do not call for
4 special scrutiny, as airport interviews do” and finding
5 reliable for credibility purposes an interview record that
6 “contains a meaningful, clear, and reliable summary of the
7 statements made” (internal quotation marks and brackets
8 omitted)(emphasis in original)). The agency also reasonably
9 relied on the omission from Guan’s application and her
10 mother’s letter of her assertion that police visited her
11 mother looking for Guan three times after Guan left China,
12 particularly given that the application requested information
13 regarding fear of future harm and her mother’s letter included
14 less pertinent information. See 8 U.S.C.
15 § 1158(b)(1)(B)(iii); see also Hong Fei Gao, 891 F.3d at 78–
16 79 (providing that the “probative value of the omission”
17 depends on whether the omitted facts are ones that an
18 applicant or witness “would reasonably have been expected to
19 disclose under the relevant circumstances”). The agency also
20 reasonably relied on Guan’s inconsistent evidence regarding
21 whether her witness attended her baptism in the United States
22 and her implausible testimony that she did not know her
4 1 cousin’s wife’s name despite their close contact over four
2 years. See 8 U.S.C. § 1158(b)(1)(B)(iii); Siewe v. Gonzales,
3 480 F.3d 160, 169 (2d Cir. 2007) (recognizing that adverse
4 credibility determination may be based on inherent
5 implausibility if the finding “is tethered to the evidentiary
6 record” or “record facts . . . viewed in the light of common
7 sense and ordinary experience”). Guan did not provide
8 compelling explanations for the inconsistencies and
9 implausible testimony. See Majidi v. Gonzales, 430 F.3d 77,
10 80 (2d Cir. 2005) (“A petitioner must do more than offer a
11 plausible explanation for his inconsistent statements to
12 secure relief; he must demonstrate that a reasonable fact-
13 finder would be compelled to credit his testimony.” (internal
14 quotation marks omitted)(emphasis in original)).
15 Having questioned Guan’s credibility, the agency
16 reasonably relied further on her failure to rehabilitate her
17 testimony with reliable corroborating evidence. See Biao
18 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
19 applicant’s failure to corroborate his or her testimony may
20 bear on credibility, because the absence of corroboration in
21 general makes an applicant unable to rehabilitate testimony
22 that has already been called into question.”). The agency
5 1 reasonably declined to credit unsworn statements from Guan’s
2 relatives and acquaintances in China, statements from her
3 witness, cousin’s wife, and current church that conflicted
4 with her testimony, and handwritten documents from China that
5 were not authenticated by any means. See Y.C. v. Holder, 741
6 F.3d 324, 332, 334 (2d Cir. 2013) (deferring to agency’s
7 determination of weight of evidence); see also In re H-L-H-
8 & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding
9 that letters from alien’s friends and family were
10 insufficient to provide substantial support for alien’s
11 claims because they were from interested witnesses not
12 subject to cross-examination), overruled on other grounds by
13 Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012).
14 Given the inconsistency, implausibility, and
15 corroboration findings, the agency’s adverse credibility
16 determination is supported by substantial evidence.* See
17 8 U.S.C. § 1158(b)(1)(B)(iii). That determination was
*Although the agency erred in relying on two lesser omissions, see Hong Fei Gao, 891 F.3d at 82, we conclude that remand would be futile because the other inconsistencies and implausible testimony constitute substantial evidence for the adverse credibility determination. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006); Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude an alien from showing that an IJ was compelled to find him credible. Multiple inconsistencies would so preclude even more forcefully.”). 6 1 dispositive of asylum, withholding of removal, and CAT relief
2 because all three claims were based on the same factual
3 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
4 Cir. 2006). Accordingly, we do not consider the agency’s
5 alternative burden finding. See INS v. Bagamasbad, 429 U.S.
6 24, 25 (1976) (“As a general rule courts and agencies are not
7 required to make findings on issues the decision of which is
8 unnecessary to the results they reach.”).
9 For the foregoing reasons, the petition for review is
10 DENIED. All pending motions and applications are DENIED and
11 stays VACATED.
12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court