Han v. Whitaker

Opinion

17-1473 Han v. Whitaker BIA

Rohan, IJ

A205 813 593

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 11th day of January, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 DEBRA ANN LIVINGSTON, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 YONGHUAN HAN, 14 Petitioner, 15 16 v. 17-1473 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Louis H. Klein, The Kasen Law 24 Firm, PLLC, Flushing, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Linda S. 28 Wernery, Assistant Director; 29 Gerald M. Alexander, Trial 30 Attorney, Office of Immigration 31 Litigation, United States 32 Department of Justice, Washington, 33 DC.

1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Yonghuan Han, a native and citizen of the 6 People’s Republic of China, seeks review of an April 10, 2017 7 decision of the BIA affirming a September 1, 2016, decision 8 of an Immigration Judge (“IJ”) denying Han’s application for 9 asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”). In re Yonghuan Han, No. 11 A 205 813 593 (B.I.A. Apr. 10, 2017), aff’g No. A 205 813 593 12 (Immig. Ct. N.Y. City Sept. 1, 2016). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 in this case. 15 Under the circumstances of this case, we have reviewed 16 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v. 17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). We review adverse 18 credibility determinations under a substantial evidence 19 standard. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 20 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The governing 21 REAL ID Act credibility standard provides as follows:

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1 Considering the totality of the circumstances, and 2 all relevant factors, a trier of fact may base a 3 credibility determination on . . . the consistency 4 between the applicant’s or witness’s written and 5 oral statements . . . , the internal consistency of 6 each such statement, the consistency of such 7 statements with other evidence of record . . . , and 8 any inaccuracies or falsehoods in such statements, 9 . . . or any other relevant factor. 10 11 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s

12 credibility determination unless . . . it is plain that no 13 reasonable fact-finder could make such an adverse credibility 14 ruling.” Xiu Xia Lin, 534 F.3d at 167. 15 The inconsistencies within Han’s own statements and 16 between her testimony and her husband’s letter provide 17 substantial evidence for the adverse credibility 18 determination. “[A] material inconsistency in an aspect of 19 [the applicant]’s story that served as an example of the very 20 persecution from which [s]he sought asylum” can provide 21 substantial evidence for an adverse credibility ruling. Xian 22 Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 23 2006) (quoting Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir. 24 2005)). The agency reasonably concluded that Han was not 25 credible because her written statement and testimony provided 26 inconsistent descriptions of her main allegation of past

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1 persecution. 8 U.S.C. § 1158(b)(1)(B)(iii); Xian Tuan Ye, 2 446 F.3d at 295. Han’s written statement reported that she 3 went to the hospital by herself to have an abortion because 4 of pressure from her employer and family planning 5 authorities. However, she testified that five women came to 6 her house and took her by force to the hospital. Han’s 7 testimony also introduced inconsistency about the details of 8 the procedure itself. She testified that her hands were tied 9 to the bed, which contradicted her written statement, which 10 reported that she bit her fingers during the abortion. 11 The agency was not required to accept Han’s explanation 12 that she had trouble expressing herself in writing, given 13 that the written statement was detailed and Han was 14 represented by counsel when she prepared it. See Majidi, 430 15 F.3d at 80 (“A petitioner must do more than offer a plausible 16 explanation for h[er] inconsistent statements to secure 17 relief; [s]he must demonstrate that a reasonable fact-finder 18 would be compelled to credit h[er] testimony.” (internal 19 quotation marks and citations omitted)). When asked to 20 explain the inconsistency regarding whether her hands were 21 tied down during the abortion, Han stated that the restraint

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1 used was not tight and that she could move her arms. The IJ 2 was not required to accept this explanation and reasonably 3 came to a different conclusion, particularly as the IJ 4 witnessed Han’s demonstration of how her hands were tied. 5 See Siewe v. Gonzales, 480 F.3d 160, 167-68 (2d Cir. 2007) 6 (explaining that we defer to the IJ when competing inferences 7 can be drawn from the evidence). 8 Finally, the letter from Han’s husband did not 9 rehabilitate her credibility because it implied that they 10 opted for the abortion for economic reasons and did not 11 reference any use of force. See Biao Yang v. Gonzales, 496 12 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to 13 corroborate . . . her testimony may bear on credibility, 14 because the absence of corroboration in general makes an 15 applicant unable to rehabilitate testimony that has already 16 been called into question.”). 17 Because Han’s claims were all based on the same factual 18 predicate, the adverse credibility determination is 19 dispositive of asylum, withholding of removal, and CAT 20 relief. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 21 2006).

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1 For the foregoing reasons, the petition for review is 2 DENIED. As we have completed our review, any stay of removal 3 that the Court previously granted in this petition is VACATED, 4 and any pending motion for a stay of removal in this petition 5 is DISMISSED as moot. Any pending request for oral argument 6 in this petition is DENIED in accordance with Federal Rule of 7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 8 34.1(b).

9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, 11 Clerk of Court