18-18 He v. Barr BIA Loprest, IJ A206 561 595 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 13th day of November, two thousand 5 nineteen. 6 7 PRESENT: 8 JOSÉ A. CABRANES, 9 RAYMOND J. LOHIER, JR., 10 MICHAEL H. PARK, 11 Circuit Judges. 12 _____________________________________ 13 SHAOJIAN HE, 14 Petitioner, 15 16 v. 18-18 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Ting Geng, Law Office of Xin 24 Miao, LLC, Flushing, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Holly M. Smith, 28 Senior Litigation Counsel; David 29 Kim, Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, 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 Shaojian He, a native and citizen of China,
6 seeks review of a December 6, 2017, decision of the BIA
7 affirming an April 7, 2017, decision of an Immigration Judge
8 (“IJ”) denying He’s application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”), and ordering He removed. In re Shaojian He, No. A
11 206 561 595 (B.I.A. Dec. 6, 2017), aff’g No. A 206 561 595
12 (Immig. Ct. N.Y. City Apr. 7, 2017). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 We have reviewed both the IJ’s and BIA’s decisions
16 denying relief on credibility grounds. Hong Fei Gao v.
17 Sessions, 891 F.3d 67, 76 (2d Cir. 2018). The applicable
18 standards of review are well established. See 8 U.S.C.
19 § 1252(b)(4)(B).
20 “Considering the totality of the circumstances, and all
21 relevant factors, a trier of fact may base a credibility
22 determination on the demeanor, candor, or responsiveness of
23 the applicant or witness, the inherent plausibility of the 2 1 applicant’s or witness’s account, the consistency between the
2 applicant’s or witness’s written and oral statements . . .,
3 [and] the internal consistency of each such statement . . .
4 without regard to whether an inconsistency, inaccuracy, or
5 falsehood goes to the heart of the applicant’s claim . . . .”
6 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
7 credibility determination unless . . . it is plain that no
8 reasonable fact-finder could make such an adverse credibility
9 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
10 2008) (per curiam); accord Hong Fei Gao, 891 F.3d at 76.
11 Substantial evidence supports the agency’s determination that
12 He was not credible as to his claims that Chinese police
13 arrested, beat, and detained him for attending an underground
14 church service, and that he continues to practice
15 Christianity such that he has a fear of future persecution.
16 The agency reasonably relied on inconsistencies among
17 He’s testimony, written application, and documentary
18 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
19 534 F.3d at 163–64. He’s testimony was inconsistent with his
20 own application and corroborating evidence regarding the date
21 of his alleged arrest in China, and how long another
22 practitioner was detained by the Chinese local police. The
23 IJ was not compelled to credit He’s explanation that a long 3 1 period of time had passed since the events, particularly when
2 He gave correct answers when prompted. See Majidi v.
3 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
4 do more than offer a plausible explanation for his
5 inconsistent statements to secure relief; he must demonstrate
6 that a reasonable fact-finder would be compelled to credit
7 his testimony.” (internal quotations omitted)). In addition,
8 the agency reasonably relied on discrepancies regarding the
9 location of He’s church in the United States and the length
10 of the lapse in his church attendance. Although these
11 inconsistencies are minor, the agency did not err in relying
12 upon their cumulative effect to render an adverse credibility
13 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Tu Lin v.
14 Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) (emphasizing that
15 “even where an IJ relies on discrepancies or lacunae that, if
16 taken separately, concern matters collateral or ancillary to
17 the claim, . . . the cumulative effect may nevertheless be
18 deemed consequential by the fact-finder”) (internal
19 quotations and citation omitted).
20 Furthermore, the IJ’s adverse credibility determination
21 is bolstered by additional findings regarding the
22 plausibility of He’s claim, his demeanor, and his lack of
23 reliable corroboration. The IJ’s implausibility findings are 4 1 sufficiently tethered to the record: He testified that he
2 came to the United States to practice Christianity, but
3 conceded that he did not attend church for ten months after
4 his arrival and testified that he did not tell his family
5 members in the United States that he was Christian or that he
6 fled China because of religious persecution despite the fact
7 that he lived with them while he was attending church in the
8 United States. See Wensheng Yan v. Mukasey, 509 F.3d 63, 67
9 (2d Cir. 2007) (per curiam) (stating that we will not disturb
10 an inherent plausibility finding so long as the IJ’s finding
11 is “tethered to record evidence, and there is nothing else in
12 the record from which a firm conviction of error could
13 properly be derived”).
14 We also defer to the IJ’s demeanor finding, particularly
15 where, as here, the record reflects that He had difficulty
16 responding to questions about the inconsistent and
17 implausible aspects of his testimony. See Majidi, 430 F.3d
18 at 81 n.1 (recognizing that particular deference is given to
19 the trier of fact’s assessment of demeanor); Li Hua Lin v.
20 U.S.
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18-18 He v. Barr BIA Loprest, IJ A206 561 595 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 13th day of November, two thousand 5 nineteen. 6 7 PRESENT: 8 JOSÉ A. CABRANES, 9 RAYMOND J. LOHIER, JR., 10 MICHAEL H. PARK, 11 Circuit Judges. 12 _____________________________________ 13 SHAOJIAN HE, 14 Petitioner, 15 16 v. 18-18 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Ting Geng, Law Office of Xin 24 Miao, LLC, Flushing, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Holly M. Smith, 28 Senior Litigation Counsel; David 29 Kim, Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, 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 Shaojian He, a native and citizen of China,
6 seeks review of a December 6, 2017, decision of the BIA
7 affirming an April 7, 2017, decision of an Immigration Judge
8 (“IJ”) denying He’s application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”), and ordering He removed. In re Shaojian He, No. A
11 206 561 595 (B.I.A. Dec. 6, 2017), aff’g No. A 206 561 595
12 (Immig. Ct. N.Y. City Apr. 7, 2017). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 We have reviewed both the IJ’s and BIA’s decisions
16 denying relief on credibility grounds. Hong Fei Gao v.
17 Sessions, 891 F.3d 67, 76 (2d Cir. 2018). The applicable
18 standards of review are well established. See 8 U.S.C.
19 § 1252(b)(4)(B).
20 “Considering the totality of the circumstances, and all
21 relevant factors, a trier of fact may base a credibility
22 determination on the demeanor, candor, or responsiveness of
23 the applicant or witness, the inherent plausibility of the 2 1 applicant’s or witness’s account, the consistency between the
2 applicant’s or witness’s written and oral statements . . .,
3 [and] the internal consistency of each such statement . . .
4 without regard to whether an inconsistency, inaccuracy, or
5 falsehood goes to the heart of the applicant’s claim . . . .”
6 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
7 credibility determination unless . . . it is plain that no
8 reasonable fact-finder could make such an adverse credibility
9 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
10 2008) (per curiam); accord Hong Fei Gao, 891 F.3d at 76.
11 Substantial evidence supports the agency’s determination that
12 He was not credible as to his claims that Chinese police
13 arrested, beat, and detained him for attending an underground
14 church service, and that he continues to practice
15 Christianity such that he has a fear of future persecution.
16 The agency reasonably relied on inconsistencies among
17 He’s testimony, written application, and documentary
18 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
19 534 F.3d at 163–64. He’s testimony was inconsistent with his
20 own application and corroborating evidence regarding the date
21 of his alleged arrest in China, and how long another
22 practitioner was detained by the Chinese local police. The
23 IJ was not compelled to credit He’s explanation that a long 3 1 period of time had passed since the events, particularly when
2 He gave correct answers when prompted. See Majidi v.
3 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
4 do more than offer a plausible explanation for his
5 inconsistent statements to secure relief; he must demonstrate
6 that a reasonable fact-finder would be compelled to credit
7 his testimony.” (internal quotations omitted)). In addition,
8 the agency reasonably relied on discrepancies regarding the
9 location of He’s church in the United States and the length
10 of the lapse in his church attendance. Although these
11 inconsistencies are minor, the agency did not err in relying
12 upon their cumulative effect to render an adverse credibility
13 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Tu Lin v.
14 Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) (emphasizing that
15 “even where an IJ relies on discrepancies or lacunae that, if
16 taken separately, concern matters collateral or ancillary to
17 the claim, . . . the cumulative effect may nevertheless be
18 deemed consequential by the fact-finder”) (internal
19 quotations and citation omitted).
20 Furthermore, the IJ’s adverse credibility determination
21 is bolstered by additional findings regarding the
22 plausibility of He’s claim, his demeanor, and his lack of
23 reliable corroboration. The IJ’s implausibility findings are 4 1 sufficiently tethered to the record: He testified that he
2 came to the United States to practice Christianity, but
3 conceded that he did not attend church for ten months after
4 his arrival and testified that he did not tell his family
5 members in the United States that he was Christian or that he
6 fled China because of religious persecution despite the fact
7 that he lived with them while he was attending church in the
8 United States. See Wensheng Yan v. Mukasey, 509 F.3d 63, 67
9 (2d Cir. 2007) (per curiam) (stating that we will not disturb
10 an inherent plausibility finding so long as the IJ’s finding
11 is “tethered to record evidence, and there is nothing else in
12 the record from which a firm conviction of error could
13 properly be derived”).
14 We also defer to the IJ’s demeanor finding, particularly
15 where, as here, the record reflects that He had difficulty
16 responding to questions about the inconsistent and
17 implausible aspects of his testimony. See Majidi, 430 F.3d
18 at 81 n.1 (recognizing that particular deference is given to
19 the trier of fact’s assessment of demeanor); Li Hua Lin v.
20 U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We
21 can be still more confident in our review of observations
22 about an applicant’s demeanor where, as here, they are
23 supported by specific examples of inconsistent testimony.”). 5 1 Finally, having questioned He’s credibility, the agency
2 reasonably relied on his failure to submit reliable
3 corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d
4 268, 273 (2d Cir. 2007) (“An applicant’s failure to
5 corroborate his or her testimony may bear on credibility,
6 because the absence of corroboration in general makes an
7 applicant unable to rehabilitate testimony that has already
8 been called into question.”). The record shows that the IJ
9 considered the documentary evidence but found it insufficient
10 to rehabilitate He’s testimony. The IJ was entitled to give
11 little weight to letters from He’s father and friend in China.
12 See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Y.C. v. Holder,
13 741 F.3d 324, 332, 334 (2d Cir. 2013) (holding that “[w]e
14 generally defer to the agency’s evaluation of the weight to
15 be afforded an applicant’s documentary evidence” and
16 upholding the BIA’s decision not to credit a letter from the
17 applicant’s spouse in China). And, as noted above, the
18 evidence of He’s church attendance was inconsistent with his
19 testimony.
20 Taken together, the inconsistencies, implausibility and
21 demeanor findings, and lack of reliable corroboration provide
22 substantial evidence for the adverse credibility
23 determination. That determination is dispositive of asylum, 6 1 withholding of removal, and CAT relief because all three
2 claims are based on the same factual predicate. See Paul v.
3 Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are DENIED and
6 stays VACATED.
7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court