18-3381 Li v. Rosen BIA Zagzoug, IJ A206 054 736 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 4th day of January, two thousand twenty-one. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROBERT D. SACK, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 XIAO FANG LI, 14 Petitioner, 15 16 v. 18-3381 17 NAC 18 JEFFREY A. ROSEN, ACTING UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: John S. Yong, Esq., New York, NY. 24 25 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 26 Assistant Attorney General; Mary
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Jeffrey A. Rosen is automatically substituted for former Attorney General William P. Barr as Respondent. 1 Jane Candaux, Assistant Director; 2 Stephanie E. Beckett, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Xiao Fang Li, a native and citizen of the
12 People’s Republic of China, seeks review of an October 24,
13 2018, decision of the BIA that affirmed an October 24, 2017,
14 decision of an Immigration Judge (“IJ”) denying asylum,
15 withholding of removal, and relief under the Convention
16 Against Torture (“CAT”), and denied Li’s motion to remand.
17 In re Xiao Fang Li, No. A206 054 736 (B.I.A. Oct. 24, 2018),
18 aff’g No. A206 054 736 (Immig. Ct. N.Y. City Oct. 24, 2017).
19 We assume the parties’ familiarity with the underlying facts
20 and procedural history.
21 Under the circumstances, we have reviewed the IJ’s
22 decision as supplemented by the BIA. See Yan Chen v.
23 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
2 1 A. Adverse Credibility Determination
2 The applicable standards of review are well established.
3 See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891
4 F.3d 67, 76 (2d Cir. 2018). “Considering the totality of the
5 circumstances, and all relevant factors, a trier of fact may
6 base a credibility determination on the demeanor, candor, or
7 responsiveness of the applicant or witness, the inherent
8 plausibility of the applicant’s or witness’s account, the
9 consistency between the applicant’s or witness’s written and
10 oral statements . . . , the internal consistency of each such
11 statement . . . without regard to whether an inconsistency,
12 inaccuracy, or falsehood goes to the heart of the applicant’s
13 claim, or any other relevant factor.” 8 U.S.C.
14 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534
15 F.3d 162, 163–64 (2d Cir. 2008). “We defer . . . to an IJ’s
16 credibility determination unless, from the totality of the
17 circumstances, it is plain that no reasonable fact-finder
18 could make such an adverse credibility ruling.” Xiu Xia Lin,
19 534 F.3d at 167; accord Hong Fei Gao, 891 F.3d at 76.
20 Substantial evidence supports the agency’s determination that
21 Li was not credible as to her claim that police detained and
3 1 beat her and sought to arrest her a second time for practicing
2 Christianity in an unregistered church in China.
3 The IJ reasonably relied in part on Li’s flat, hesitant,
4 and evasive demeanor. See 8 U.S.C. § 1158(b)(1)(B)(iii); see
5 also Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).
6 That finding is supported by the record, which shows Li’s
7 lengthy pauses and failure to respond to questions despite
8 affirmation that she understood the questions being posed.
9 Further, Li’s longest pauses and lack of responsiveness
10 occurred when she was asked to provide details material to
11 her claim of past persecution, which she never provided, or
12 was questioned about implausible aspects of her story. The
13 IJ was not compelled to credit Li’s explanation that she was
14 nervous because her nervousness did not prevent her from
15 answering general questions about her claim and her inability
16 to provide details despite multiple opportunities further
17 impugned her credibility. See Majidi, 430 F.3d at 80 (“A
18 petitioner must do more than offer a plausible explanation
19 for his inconsistent statements to secure relief; he must
20 demonstrate that a reasonable fact-finder would be compelled
21 to credit his testimony.” (internal quotation marks
4 1 omitted)); see also Jin Shui Qiu v. Ashcroft, 329 F.3d 140,
2 152 (2d Cir. 2003) (“Where an applicant gives very spare
3 testimony . . . the IJ . . . may fairly wonder whether the
4 testimony is fabricated.”), overruled in part on other
5 grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d
6 296, 305 (2d Cir. 2007).
7 The IJ’s demeanor finding and adverse credibility
8 determination as a whole were further supported by Li’s
9 inconsistent and implausible testimony regarding the severity
10 of her beating and her ability to travel unrestricted while
11 police sought to arrest her. See 8 U.S.C.
12 § 1158(b)(1)(B)(iii); see also Li Hua Lin v. U.S. Dep’t of
13 Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still
14 more confident in our review of observations about an
15 applicant’s demeanor where, as here, they are supported by
16 specific examples of inconsistent testimony.”).
17 Having questioned Li’s credibility, the agency
18 reasonably relied on her failure to rehabilitate her
19 credibility with reliable corroborating evidence. “An
20 applicant’s failure to corroborate his or her testimony may
21 bear on credibility, because the absence of corroboration in
5 1 general makes an applicant unable to rehabilitate testimony
2 that has already been called into question.” Biao Yang v.
3 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). First, the IJ
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18-3381 Li v. Rosen BIA Zagzoug, IJ A206 054 736 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 4th day of January, two thousand twenty-one. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROBERT D. SACK, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 XIAO FANG LI, 14 Petitioner, 15 16 v. 18-3381 17 NAC 18 JEFFREY A. ROSEN, ACTING UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: John S. Yong, Esq., New York, NY. 24 25 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 26 Assistant Attorney General; Mary
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Jeffrey A. Rosen is automatically substituted for former Attorney General William P. Barr as Respondent. 1 Jane Candaux, Assistant Director; 2 Stephanie E. Beckett, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Xiao Fang Li, a native and citizen of the
12 People’s Republic of China, seeks review of an October 24,
13 2018, decision of the BIA that affirmed an October 24, 2017,
14 decision of an Immigration Judge (“IJ”) denying asylum,
15 withholding of removal, and relief under the Convention
16 Against Torture (“CAT”), and denied Li’s motion to remand.
17 In re Xiao Fang Li, No. A206 054 736 (B.I.A. Oct. 24, 2018),
18 aff’g No. A206 054 736 (Immig. Ct. N.Y. City Oct. 24, 2017).
19 We assume the parties’ familiarity with the underlying facts
20 and procedural history.
21 Under the circumstances, we have reviewed the IJ’s
22 decision as supplemented by the BIA. See Yan Chen v.
23 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
2 1 A. Adverse Credibility Determination
2 The applicable standards of review are well established.
3 See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891
4 F.3d 67, 76 (2d Cir. 2018). “Considering the totality of the
5 circumstances, and all relevant factors, a trier of fact may
6 base a credibility determination on the demeanor, candor, or
7 responsiveness of the applicant or witness, the inherent
8 plausibility of the applicant’s or witness’s account, the
9 consistency between the applicant’s or witness’s written and
10 oral statements . . . , the internal consistency of each such
11 statement . . . without regard to whether an inconsistency,
12 inaccuracy, or falsehood goes to the heart of the applicant’s
13 claim, or any other relevant factor.” 8 U.S.C.
14 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534
15 F.3d 162, 163–64 (2d Cir. 2008). “We defer . . . to an IJ’s
16 credibility determination unless, from the totality of the
17 circumstances, it is plain that no reasonable fact-finder
18 could make such an adverse credibility ruling.” Xiu Xia Lin,
19 534 F.3d at 167; accord Hong Fei Gao, 891 F.3d at 76.
20 Substantial evidence supports the agency’s determination that
21 Li was not credible as to her claim that police detained and
3 1 beat her and sought to arrest her a second time for practicing
2 Christianity in an unregistered church in China.
3 The IJ reasonably relied in part on Li’s flat, hesitant,
4 and evasive demeanor. See 8 U.S.C. § 1158(b)(1)(B)(iii); see
5 also Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).
6 That finding is supported by the record, which shows Li’s
7 lengthy pauses and failure to respond to questions despite
8 affirmation that she understood the questions being posed.
9 Further, Li’s longest pauses and lack of responsiveness
10 occurred when she was asked to provide details material to
11 her claim of past persecution, which she never provided, or
12 was questioned about implausible aspects of her story. The
13 IJ was not compelled to credit Li’s explanation that she was
14 nervous because her nervousness did not prevent her from
15 answering general questions about her claim and her inability
16 to provide details despite multiple opportunities further
17 impugned her credibility. See Majidi, 430 F.3d at 80 (“A
18 petitioner must do more than offer a plausible explanation
19 for his inconsistent statements to secure relief; he must
20 demonstrate that a reasonable fact-finder would be compelled
21 to credit his testimony.” (internal quotation marks
4 1 omitted)); see also Jin Shui Qiu v. Ashcroft, 329 F.3d 140,
2 152 (2d Cir. 2003) (“Where an applicant gives very spare
3 testimony . . . the IJ . . . may fairly wonder whether the
4 testimony is fabricated.”), overruled in part on other
5 grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d
6 296, 305 (2d Cir. 2007).
7 The IJ’s demeanor finding and adverse credibility
8 determination as a whole were further supported by Li’s
9 inconsistent and implausible testimony regarding the severity
10 of her beating and her ability to travel unrestricted while
11 police sought to arrest her. See 8 U.S.C.
12 § 1158(b)(1)(B)(iii); see also Li Hua Lin v. U.S. Dep’t of
13 Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still
14 more confident in our review of observations about an
15 applicant’s demeanor where, as here, they are supported by
16 specific examples of inconsistent testimony.”).
17 Having questioned Li’s credibility, the agency
18 reasonably relied on her failure to rehabilitate her
19 credibility with reliable corroborating evidence. “An
20 applicant’s failure to corroborate his or her testimony may
21 bear on credibility, because the absence of corroboration in
5 1 general makes an applicant unable to rehabilitate testimony
2 that has already been called into question.” Biao Yang v.
3 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). First, the IJ
4 reasonably noted that a letter from Li’s purported
5 underground church in China did not corroborate her claim and
6 further impugned her credibility because it was written on
7 printed letterhead and stamped with an official church seal
8 even though the church was unregistered and secretive and the
9 letter did not mention the two raids on the church or the
10 arrest of practitioners. See Y.C. v. Holder, 741 F.3d 324,
11 334 (2d Cir. 2013) (“We defer to the agency’s determination
12 of the weight afforded to an alien’s documentary evidence.”);
13 see also Hong Fei Gao, 891 F.3d at 78 (“The probative value
14 of a witness’s . . . silence on particular facts depends on
15 whether those facts are ones the witness would reasonably
16 have been expected to disclose.”). The agency also
17 reasonably declined to credit unsworn letters from Li’s
18 father and church friend in China, her boyfriend’s testimony
19 about their church attendance in the United States, and a
20 letter from a church elder in the United States because this
21 evidence was provided by interested witnesses or by
6 1 individuals who were not made available for cross-
2 examination. See Y.C., 741 F.3d at 332, 334; see also In re
3 H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)
4 (finding that letters from alien’s friends and family were
5 insufficient to provide substantial support for alien’s
6 claims because they were from interested witnesses not
7 subject to cross-examination), overruled on other grounds by
8 Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012).
9 Given the demeanor, inconsistency, implausibility, and
10 corroboration findings, the adverse credibility determination
11 is supported by substantial evidence. See Xiu Xia Lin, 534
12 F.3d at 165–66. That determination is dispositive of asylum,
13 withholding of removal, and CAT relief because all three
14 claims are based on the same factual predicate. See Paul v.
15 Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006). Accordingly,
16 we do not consider the agency’s alternative burden finding.
17 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general
18 rule courts and agencies are not required to make findings on
19 issues the decision of which is unnecessary to the results
20 they reach.”).
7 1 B. Motion to Remand
2 We review the BIA’s denial of a motion to remand for
3 abuse of discretion. Li Yong Cao v. U.S. Dep’t of Justice,
4 421 F.3d 149, 157 (2d Cir. 2005). The BIA may deny a motion
5 to remand based on a movant’s failure to show prima facie
6 eligibility for relief. See id.; see also 8 C.F.R.
7 § 1003.2(c)(1). The BIA did not abuse its discretion in
8 denying Li’s motion to remand to adjust to lawful permanent
9 resident status because, as she admits in her opening brief,
10 she is not currently eligible for that relief. See Li Yong
11 Cao, 421 F.3d at 156.
12 For the foregoing reasons, the petition for review is
13 DENIED. All pending motions and applications are DENIED and
14 stays VACATED.
15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court