Lei v. Garland
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Opinion
22-6330 Lei v. Garland BIA Gordon-Uruakpa, IJ A206 283 811
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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 11th day of July, two thousand twenty- 4 four. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 RICHARD J. SULLIVAN, 9 MYRNA PÉREZ, 10 Circuit Judges. 11 _____________________________________ 12 13 LI XUE LEI, 14 Petitioner, 15 16 v. 22-6330 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Li Han, Esq., Flushing, NY. 1 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 2 Attorney General; Daniel E. Goldman, Senior 3 Litigation Counsel; Christina R. Zeidan, Trial 4 Attorney; Charles J. Lautenbach, Law Clerk, 5 Office of Immigration Litigation, United 6 States Department of Justice, Washington, 7 DC.
8 UPON DUE CONSIDERATION of this petition for review of a Board of
9 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
10 DECREED that the petition for review is DENIED.
11 Petitioner Li Xue Lei, a native and citizen of the People’s Republic of China,
12 seeks review of a June 21, 2022 decision of the BIA affirming a December 21, 2018
13 decision of an Immigration Judge (“IJ”) denying his application for asylum,
14 withholding of removal, and relief under the Convention Against Torture
15 (“CAT”). In re Li Xue Lei, No. A 206 283 811 (B.I.A. June 21, 2022), aff’g No. A 206
16 283 811 (Immigr. Ct. N.Y.C. Dec. 21, 2018). We assume the parties’ familiarity
17 with the underlying facts and procedural history.
18 We have reviewed the IJ’s decision as supplemented by the BIA. See Chen
19 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s “legal
20 conclusions de novo, and its factual findings, including adverse credibility
21 determinations, under the substantial evidence standard.” Y.C. v. Holder, 741
2 1 F.3d 324, 332 (2d Cir. 2013) (internal quotation marks omitted). “[T]he
2 administrative findings of fact are conclusive unless any reasonable adjudicator
3 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
4 “Considering the totality of the circumstances, and all relevant factors, a
5 trier of fact may base a credibility determination on the demeanor, candor, or
6 responsiveness of the applicant . . . , the inherent plausibility of the
7 applicant’s . . . account, the consistency between the applicant’s . . . written and
8 oral statements . . . , the internal consistency of each such statement, . . . and any
9 inaccuracies or falsehoods in such statements, without regard to whether an
10 inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim,
11 or any other relevant factor.” Id. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
12 credibility determination unless, from the totality of the circumstances, it is plain
13 that no reasonable fact-finder could make such an adverse credibility ruling.”
14 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao v.
15 Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
16 Lei’s challenge to the agency’s adverse credibility determination here is so
17 cursory that he has arguably waived this dispositive issue. See Debique v. Garland,
18 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any claims not
3 1 adequately presented in an appellant’s brief, and an appellant’s failure to make
2 legal or factual arguments constitutes abandonment.” (internal quotation marks
3 omitted)).
4 Even setting aside Lei’s arguable waiver of this argument, substantial
5 evidence supports the agency’s determination that Lei did not testify credibly.
6 Lei’s original and amended asylum application forms contain a significant
7 discrepancy regarding the date when he learned that his wife was pregnant with
8 their second child and the date of the child’s birth. At his hearing, Lei never
9 testified that he was mistaken about the timeline, but instead repeatedly claimed
10 that the timeline in the written statements was correct. It was only after he
11 realized that his version of events was impossible that he asserted he did not know
12 “how to count.” Certified Admin. Record at 84. The IJ reasonably found that
13 this explanation was not compelling. Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
14 2005) (“A petitioner must do more than offer a plausible explanation for his
15 inconsistent statements to secure relief; he must demonstrate that a reasonable
16 fact-finder would be compelled to credit his testimony.” (internal quotation marks
17 omitted)).
18 Contrary to Lei’s position, this discrepancy is not trivial, as his wife’s second
4 1 pregnancy was central to his claim that he was persecuted for violating and
2 opposing China’s family-planning policy. In any event, the agency is entitled to
3 rely on testimony-related discrepancies that do not go to the heart of an applicant’s
4 claims so long as the totality of the circumstances supports the adverse credibility
5 determination—which is the case here given Lei’s repeated failure to explain his
6 testimony after the implausibility was pointed out to him. See Xiu Xia Lin, 534
7 F.3d at 167–68; see also Zhang v. U.S. I.N.S, 386 F.3d 66, 73 (2d Cir. 2004) (“A fact-
8 finder who assesses testimony together with witness demeanor is in the best
9 position to discern, often at a glance, whether a question that may appear poorly
10 worded on a printed page was, in fact, confusing or well understood by those who
11 heard it; whether a witness who hesitated in a response was nevertheless
12 attempting truthfully to recount what he recalled of key events or struggling to
13 remember the lines of a carefully crafted ‘script’; and whether inconsistent
14 responses are the product of innocent error or intentional falsehood.”), overruled
15 on other grounds by Shi Liang Lin v. U.S. Dep’t of Just., 494 F.3d 296 (2d Cir. 2007).
16 In sum, given the implausibility of Lei’s testimony and his failure to advance
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Lei v. Garland, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lei-v-garland-ca2-2024.