20-3088 Kai v. Garland BIA Navarro, IJ A206 636 123 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.
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 3rd day of April, two thousand twenty- 5 three. 6 7 PRESENT: 8 DEBRA ANN LIVINGSTON, 9 Chief Judge, 10 STEVEN J. MENASHI, 11 EUNICE C. LEE, 12 Circuit Judges. 13 _____________________________________ 14 15 CHEN KAI, 16 Petitioner, 17 18 v. 20-3088 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 26 FOR PETITIONER: Troy Nader Moslemi, Esq., 27 Flushing, NY. 28 1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 2 Attorney General; Cindy S. 3 Ferrier, Assistant Director; Marie 4 V. Robinson, Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Chen Kai, a native and citizen of the People’s
13 Republic of China, seeks review of an August 14, 2020,
14 decision of the BIA affirming a July 12, 2018, decision of an
15 Immigration Judge (“IJ”) denying his application for asylum,
16 withholding of removal, and relief under the Convention
17 Against Torture (“CAT”). In re Chen Kai, No. A 206 636 123
18 (B.I.A. Aug. 14, 2020, aff’g No. A 206 636 123 (Immigr. Ct.
19 N.Y. City July 12, 2018). We assume the parties’ familiarity
20 with the underlying facts and procedural history.
21 We have considered the decisions of both the IJ and the
22 BIA. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 262 (2d
23 Cir. 2007). The applicable standards of review are well
24 established. See 8 U.S.C. § 1252(b)(4)(B) (”[T]he
25 administrative findings of fact are conclusive unless any 2 1 reasonable adjudicator would be compelled to conclude to the
2 contrary.”); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
3 Cir. 2018) (reviewing adverse credibility determination for
4 substantial evidence); Yanqin Weng v. Holder, 562 F.3d 510,
5 513 (2d Cir. 2009) (reviewing factual findings for
6 substantial evidence and questions of law, including
7 application of law to fact, de novo).
8 “Considering the totality of the circumstances, and all
9 relevant factors, a trier of fact may base a credibility
10 determination on the demeanor, candor, or responsiveness of
11 the applicant or witness, . . . the consistency between the
12 applicant’s or witness’s written and oral statements
13 (whenever made and whether or not under oath, and considering
14 the circumstances under which the statements were made), the
15 internal consistency of each such statement, the consistency
16 of such statements with other evidence of record . . . , and
17 any inaccuracies or falsehoods in such statements, without
18 regard to whether an inconsistency, inaccuracy, or falsehood
19 goes to the heart of the applicant’s claim, or any other
20 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer
21 . . . to an IJ’s credibility determination unless, from the
3 1 totality of the circumstances, it is plain that no reasonable
2 fact-finder could make such an adverse credibility ruling.”
3 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
4 accord Hong Fei Gao, 891 F.3d at 76. The agency reasonably
5 concluded that Kai failed to meet his burden given
6 inconsistencies in his statements and evidence, his demeanor
7 when questioned about those inconsistencies, and his failure
8 to rehabilitate his claim with reliable documentary evidence.
9 Kai alleged that he was arrested and detained for
10 attending an underground Christian church. The agency
11 reasonably relied on Kai’s inconsistency about why and when
12 he was fired from his job, including the job’s relationship
13 to his church attendance. Throughout his testimony, Kai
14 averred that he only had one job in China, a job at a
15 restaurant, and that being fired from that job is what caused
16 him to become interested in Christianity. However, he
17 offered multiple inconsistent dates as to when he was fired
18 from that job. In his application, he stated that he was
19 fired from the restaurant in January 2013 because he worked
20 too slowly, but elsewhere in the application he stated he was
21 fired after his month-long detention by police following a
4 1 raid of a church meeting — that is, in November 2013. At his
2 hearing, Kai initially testified that he lost his job in
3 January 2010, but then said he was fired in October 2013. As
4 the BIA noted in its decision, these inconsistencies were
5 significant given Kai’s statements that the event of his
6 firing led him to attend his first church meeting. Kai was
7 not able to make sense of these discrepancies, only explaining
8 that his “memories were not that sharp.” Certified
9 Administrative Record 93. The agency was not required to
10 credit this explanation. See Majidi v. Gonzales, 430 F.3d
11 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer
12 a plausible explanation for his inconsistent statements to
13 secure relief; he must demonstrate that a reasonable fact-
14 finder would be compelled to credit his testimony.”
15 (quotation marks omitted; emphasis in original)).
16 Moreover, Kai was also inconsistent about whether he
17 spoke to the individual who introduced him to the church after
18 his release from detention. While this inconsistency may
19 have been minor, when taken in aggregate with the other
20 considerations relied upon by the agency, it supports an
21 adverse credibility finding. See Xiu Xia Lin, 534 F.3d at
5 1 167 (“[A]n IJ may rely on any inconsistency . . . in making
2 an adverse credibility determination as long as the ‘totality
3 of the circumstances’ establishes that an asylum applicant is
4 not credible.” (quoting 8 U.S.C. § 1158(b)(1)(B)(iii);
5 emphasis in original)).
6 The adverse credibility determination is bolstered by
7 the IJ’s demeanor finding. See 8 U.S.C.
8 § 1158(b)(1)(B)(iii). The IJ noted long pauses when Kai was
Free access — add to your briefcase to read the full text and ask questions with AI
20-3088 Kai v. Garland BIA Navarro, IJ A206 636 123 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.
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 3rd day of April, two thousand twenty- 5 three. 6 7 PRESENT: 8 DEBRA ANN LIVINGSTON, 9 Chief Judge, 10 STEVEN J. MENASHI, 11 EUNICE C. LEE, 12 Circuit Judges. 13 _____________________________________ 14 15 CHEN KAI, 16 Petitioner, 17 18 v. 20-3088 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 26 FOR PETITIONER: Troy Nader Moslemi, Esq., 27 Flushing, NY. 28 1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 2 Attorney General; Cindy S. 3 Ferrier, Assistant Director; Marie 4 V. Robinson, Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Chen Kai, a native and citizen of the People’s
13 Republic of China, seeks review of an August 14, 2020,
14 decision of the BIA affirming a July 12, 2018, decision of an
15 Immigration Judge (“IJ”) denying his application for asylum,
16 withholding of removal, and relief under the Convention
17 Against Torture (“CAT”). In re Chen Kai, No. A 206 636 123
18 (B.I.A. Aug. 14, 2020, aff’g No. A 206 636 123 (Immigr. Ct.
19 N.Y. City July 12, 2018). We assume the parties’ familiarity
20 with the underlying facts and procedural history.
21 We have considered the decisions of both the IJ and the
22 BIA. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 262 (2d
23 Cir. 2007). The applicable standards of review are well
24 established. See 8 U.S.C. § 1252(b)(4)(B) (”[T]he
25 administrative findings of fact are conclusive unless any 2 1 reasonable adjudicator would be compelled to conclude to the
2 contrary.”); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
3 Cir. 2018) (reviewing adverse credibility determination for
4 substantial evidence); Yanqin Weng v. Holder, 562 F.3d 510,
5 513 (2d Cir. 2009) (reviewing factual findings for
6 substantial evidence and questions of law, including
7 application of law to fact, de novo).
8 “Considering the totality of the circumstances, and all
9 relevant factors, a trier of fact may base a credibility
10 determination on the demeanor, candor, or responsiveness of
11 the applicant or witness, . . . the consistency between the
12 applicant’s or witness’s written and oral statements
13 (whenever made and whether or not under oath, and considering
14 the circumstances under which the statements were made), the
15 internal consistency of each such statement, the consistency
16 of such statements with other evidence of record . . . , and
17 any inaccuracies or falsehoods in such statements, without
18 regard to whether an inconsistency, inaccuracy, or falsehood
19 goes to the heart of the applicant’s claim, or any other
20 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer
21 . . . to an IJ’s credibility determination unless, from the
3 1 totality of the circumstances, it is plain that no reasonable
2 fact-finder could make such an adverse credibility ruling.”
3 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
4 accord Hong Fei Gao, 891 F.3d at 76. The agency reasonably
5 concluded that Kai failed to meet his burden given
6 inconsistencies in his statements and evidence, his demeanor
7 when questioned about those inconsistencies, and his failure
8 to rehabilitate his claim with reliable documentary evidence.
9 Kai alleged that he was arrested and detained for
10 attending an underground Christian church. The agency
11 reasonably relied on Kai’s inconsistency about why and when
12 he was fired from his job, including the job’s relationship
13 to his church attendance. Throughout his testimony, Kai
14 averred that he only had one job in China, a job at a
15 restaurant, and that being fired from that job is what caused
16 him to become interested in Christianity. However, he
17 offered multiple inconsistent dates as to when he was fired
18 from that job. In his application, he stated that he was
19 fired from the restaurant in January 2013 because he worked
20 too slowly, but elsewhere in the application he stated he was
21 fired after his month-long detention by police following a
4 1 raid of a church meeting — that is, in November 2013. At his
2 hearing, Kai initially testified that he lost his job in
3 January 2010, but then said he was fired in October 2013. As
4 the BIA noted in its decision, these inconsistencies were
5 significant given Kai’s statements that the event of his
6 firing led him to attend his first church meeting. Kai was
7 not able to make sense of these discrepancies, only explaining
8 that his “memories were not that sharp.” Certified
9 Administrative Record 93. The agency was not required to
10 credit this explanation. See Majidi v. Gonzales, 430 F.3d
11 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer
12 a plausible explanation for his inconsistent statements to
13 secure relief; he must demonstrate that a reasonable fact-
14 finder would be compelled to credit his testimony.”
15 (quotation marks omitted; emphasis in original)).
16 Moreover, Kai was also inconsistent about whether he
17 spoke to the individual who introduced him to the church after
18 his release from detention. While this inconsistency may
19 have been minor, when taken in aggregate with the other
20 considerations relied upon by the agency, it supports an
21 adverse credibility finding. See Xiu Xia Lin, 534 F.3d at
5 1 167 (“[A]n IJ may rely on any inconsistency . . . in making
2 an adverse credibility determination as long as the ‘totality
3 of the circumstances’ establishes that an asylum applicant is
4 not credible.” (quoting 8 U.S.C. § 1158(b)(1)(B)(iii);
5 emphasis in original)).
6 The adverse credibility determination is bolstered by
7 the IJ’s demeanor finding. See 8 U.S.C.
8 § 1158(b)(1)(B)(iii). The IJ noted long pauses when Kai was
9 asked why Chinese authorities would still pursue him and why
10 his firing dates were inconsistent. We defer to this
11 demeanor finding because the IJ “is in the best position to
12 discern, often at a glance, whether . . . a witness who
13 hesitated in a response was nevertheless attempting
14 truthfully to recount what he recalled of key events or
15 struggling to remember the lines of a carefully crafted
16 ‘script’; and whether inconsistent responses are the product
17 of innocent error or intentional falsehood.” Majidi, 430
18 F.3d at 81 n.1 (quotation marks omitted).
19 Finally, Kai’s lack of reliable corroboration further
20 undermined his claim. See Biao Yang v. Gonzales, 496 F.3d
21 268, 273 (2d Cir. 2007) (“An applicant’s failure to
6 1 corroborate his or her testimony may bear on credibility,
2 because the absence of corroboration in general makes an
3 applicant unable to rehabilitate testimony that has already
4 been called into question.”). Kai produced inconsistent
5 evidence of whether he had been baptized in the United States,
6 he testified to minimal church attendance in the United
7 States, and the letter from his church in China confirmed his
8 membership on the date of the alleged raid, but did not
9 mention the raid or any arrests.
10 Given the inconsistencies, the demeanor finding, and the
11 lack of corroboration, substantial evidence supports the
12 adverse credibility determination. See Xiu Xia Lin, 534 F.3d
13 at 167; Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir.
14 2020) (“[E]ven a single inconsistency might preclude an alien
15 from showing that an IJ was compelled to find him credible.
16 Multiple inconsistencies would so preclude even more
17 forcefully.”). That determination is dispositive of asylum,
18 withholding of removal, and CAT relief because all three
19 claims were based on the same factual predicate. See Paul
20 v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
7 1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court