20-3880 Mai v. Garland BIA
Nelson, IJ
A206 283 943/944
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 24th day of July, two thousand twenty- 5 three. 6 7 PRESENT: 8 ROSEMARY S. POOLER, 9 JOSEPH F. BIANCO, 10 MYRNA PÉREZ, 11 Circuit Judges. 12 _____________________________________ 13 14 LIYAN MAI, JINWEI WANG, 15 Petitioners, 16 17 v. 20-3880 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONERS: Troy Nader Moslemi, Esq., 25 Flushing, NY. 26 27 FOR RESPONDENT: Brian Boynton, Acting Assistant 28 Attorney General; Nancy E.
1 Friedman, Senior Litigation 2 Counsel; Virginia Lum, Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 10 Petitioners Liyan Mai and Jinwei Wang, natives and 11 citizens of the People’s Republic of China, seek review of an 12 October 22, 2020 decision of the BIA affirming a July 26, 13 2018 decision of an Immigration Judge (“IJ”), which denied 14 Mai’s application for asylum and withholding of removal. 1 In 15 re Liyan Mai, Jinwei Wang, Nos. A206 283 943/944 (B.I.A. Oct. 16 22, 2020), aff’g Nos. A206 283 943/944 (Immig. Ct. N.Y. City 17 July 26, 2018). We assume the parties’ familiarity with the 18 underlying facts and procedural history. 19 We have reviewed both the BIA’s and IJ’s decisions. See 20 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). 21 The applicable standards of review are well established. See
1 Mai does not challenge the BIA’s conclusion that she waived her claim under the Convention Against Torture. Wang, who is Mai’s husband, is a derivative applicant on Mai’s application.
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1 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of 2 fact are conclusive unless any reasonable adjudicator would 3 be compelled to conclude to the contrary.”); Hong Fei Gao v. 4 Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse 5 credibility determination for substantial evidence). 6 The IJ may, “[c]onsidering the totality of the 7 circumstances, and all relevant factors” base a credibility 8 determination on the plausibility of the claim and on 9 inconsistencies in an applicant’s or witness’s statements or 10 between those statements and other evidence “without regard 11 to whether an inconsistency, inaccuracy, or falsehood goes to 12 the heart of the applicant’s claim, or any other relevant 13 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to 14 an IJ’s credibility determination unless, from the totality 15 of the circumstances, it is plain that no reasonable fact- 16 finder could make such an adverse credibility ruling.” Xiu 17 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord 18 Hong Fei Gao, 891 F.3d at 76. 19 Mai alleged that she gave birth to a daughter in 1992 20 and was then forced to have an abortion in March 1994 when 21 family planning officers discovered her second pregnancy.
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1 Mai further alleged that she was forced to have intrauterine 2 devices (“IUDs”) implanted after her first pregnancy and 3 after she miscarried a third pregnancy in 1996. Substantial 4 evidence supports the agency’s adverse credibility 5 determination. We therefore deny the petition. 6 First, the agency reasonably relied on an omission of 7 material facts from Mai’s application and written statement. 8 Mai testified that she paid family planning officials $500 to 9 ignore her second pregnancy. However, she did not mention 10 the bribe in the detailed three-page written statement she 11 submitted in support of her application; nor did Wang mention 12 it in his letter. When asked about these omissions, Mai 13 testified she was “too afraid” to mention the bribe and was 14 “really confused” at the time. Admin. Record at 108. Wang 15 testified that he “wasn’t thinking that much.” Id. at 142. 16 The IJ was not required to credit these explanations because 17 Mai and Wang came to the United States to apply for asylum 18 and Mai filed an affirmative and detailed application. 19 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A 20 petitioner must do more than offer a plausible explanation 21 for his inconsistent statements to secure relief; he must
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1 demonstrate that a reasonable fact-finder would be compelled 2 to credit his testimony.” (internal quotation marks 3 omitted)); cf. Ming Zhang v. Holder, 585 F.3d 715, 723–24 (2d 4 Cir. 2009) (holding that, unlike border and credible fear 5 interviews that occur shortly after arrival, asylum 6 interviews are not subject to “special scrutiny” because, an 7 asylum applicant has filed an affirmative application in 8 which they must give a “detailed and specific account” and 9 have had time to obtain counsel). 10 Additionally, although “in general omissions are less 11 probative of credibility than inconsistencies created by 12 direct contradictions,” the IJ did not err in relying on these 13 omissions because the bribe was something “that a credible 14 petitioner would reasonably have been expected to disclose 15 under the relevant circumstances.” Hong Fei Gao, 891 F.3d 16 at 78–79 (internal quotation marks and citations omitted). 17 Second, the IJ reasonably relied on circumstantial 18 evidence that Mai and Wang “simply wanted to move to the 19 United States,” Admin. Record at 63, given that Wang 20 previously travelled to other countries without seeking 21 asylum, see 8 U.S.C. § 1252(b)(4)(B); Siewe v. Gonzales, 408
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1 F.3d 160, 167 (2d Cir. 2007) (“Where there are two permissible 2 views of the evidence, the factfinder’s choice between them 3 cannot be clearly erroneous.” (quotation marks omitted)). 4 Third, the IJ reasonably relied on the lack of 5 corroboration in making its adverse credibility 6 determination, given the inconsistencies among Wang’s 7 statements, her mother’s letter, and the absence of 8 confirmation of her medical history from her doctor in the 9 United States. See Biao Yang v. Gonzales, 496 F.3d 268, 273 10 (2d Cir. 2007) (“An applicant’s failure to corroborate his or 11 her testimony may bear on credibility because the absence of 12 corroboration in general makes an applicant unable to 13 rehabilitate testimony that has already been called into 14 question.”); see also Y.C. v. Holder, 741 F.3d 324, 332 (2d 15 Cir. 2013) (“We generally defer to the agency’s evaluation of 16 the weight to be afforded an applicant's documentary 17 evidence.”). 18 Finally, the agency reasonably relied on inconsistencies 19 among Mai’s application and testimony, Wang’s testimony, and 20 documentary evidence regarding the date of the alleged
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1 abortion. 2 See 8 U.S.C. § 1158(b)(1)(B)(iii). Mai stated 2 that the abortion occurred in March 1994 and that her husband 3 and mother were present for the procedure, whereas Wang and 4 mother stated it was in April 1994. The agency was not 5 required to credit Mai’s and Wang’s explanations that there 6 was confusion between the Chinese and western calendars 7 because they did not present evidence of mistranslation and 8 Wang’s explanation indicated that he used a date Mai gave him 9 rather than his own memory. See Majidi, 430 F.3d at 80. 10 Contrary to Mai’s position that the discrepancy is 11 trivial and should not have been considered, the agency “may 12 rely on any inconsistency or omission in making an adverse 13 credibility determination as long as the totality of the 14 circumstances establishes than an [] applicant is not
2 The agency erred in finding that Mai inconsistently testified that the abortion was in November 1993. Mai testified that she learned she was pregnant in November 1993. See Admin. Record at 84, 86. Given the other bases for the adverse credibility determination, this error does not warrant remand. See Lianping Li v. Lynch, 839 F.3d 144, 149 (2d Cir. 2016) (“When an IJ or BIA decision contains errors, we may nevertheless deem remand futile and deny the petition for review if substantial evidence . . . , considered in the aggregate, supports the IJ’s finding that petitioner lacked credibility, and . . . disregarding those aspects of the IJ’s reasoning that are tainted by error, we can state with confidence that the IJ would adhere to his decision were the petition remanded” (internal quotation marks and citations omitted)).
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1 credible.” Xiu Xia Lin, 534 F.3d at 167 (internal quotation 2 marks and citation omitted); Likai Gao v. Barr, 968 F.3d 137, 3 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might 4 preclude an alien from showing that an IJ was compelled to 5 find him credible. Multiple inconsistencies would so 6 preclude even more forcefully.”). 7 Taken together, the omission, the circumstantial 8 evidence, the lack of reliable corroboration, and the 9 inconsistency provide substantial evidence for the adverse 10 credibility determination. See 8 U.S.C. 11 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; see also 12 Likai Gao, 968 F.3d at 145 n.8; Biao Yang, 496 F.3d at 273. 13 The adverse credibility determination is dispositive of 14 asylum and withholding of removal because both claims are 15 based on the same factual predicate. See Paul v. Gonzales, 16 444 F.3d 148, 156–57 (2d Cir. 2006). 17 For the foregoing reasons, the petition for review is 18 DENIED. All pending motions and applications are DENIED and 19 stays VACATED.
20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, 22 Clerk of Court