18-2305 Man v. Garland BIA Hom, IJ A206 231 032 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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of March, two thousand twenty-one.
PRESENT: BARRINGTON D. PARKER, SUSAN L. CARNEY, WILLIAM J. NARDINI, Circuit Judges. _____________________________________
LIN MAN, Petitioner,
v. 18-2305 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.* _____________________________________
FOR PETITIONER: Gary J. Yerman, The Yerman Group, New York, NY.
FOR RESPONDENT: Lindsay Marshall, Office of Immigration Litigation, United
* The Clerk of Court is directed to amend the caption to conform to the above. States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Lin Man, a native and citizen of the People’s
Republic of China, seeks review of a July 23, 2018 decision
of the BIA affirming an August 11, 2017 decision of an
Immigration Judge (“IJ”) denying Man’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Lin Man, No. A 206
231 032 (B.I.A. July 23, 2018), aff’g No. A 206 231 032 (Immig.
Ct. N.Y.C. Aug. 11, 2017). We assume the parties’
familiarity with the underlying facts and procedural history.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei
Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing
adverse credibility determination under a substantial
2 evidence standard). “Considering the totality of the
circumstances, and all relevant factors, a trier of fact may
base a credibility determination on . . . the consistency
between the applicant’s or witness’s written and oral
statements . . . , the internal consistency of each such
statement, the consistency of such statements with other
evidence of record . . . , and any inaccuracies or falsehoods
in such statements, . . . or any other relevant factor.”
8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
credibility determination unless . . . it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial
evidence supports the agency’s adverse credibility
determination.
The agency reasonably relied on inconsistencies between
Man’s statements at his credible fear interview and his
testimony. As an initial matter, the interview record bore
sufficient “hallmarks of reliability” because the interview
was memorialized in a typewritten list of questions and
answers, Man had an interpreter, his responses indicated that
3 he understood the questions, and the questions addressed past
harm and fear of future harm as needed to elicit an asylum
claim. Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir.
2009) (citing Ramsameachire v. Ashcroft, 357 F.3d 169, 180–
81 (2d Cir. 2004)). Moreover, a representative from Man’s
attorney’s office was present during the interview. Man’s
challenges to the interview record are unsupported. Contrary
to Man’s testimony that they changed the interpreter during
the interview because the quality of the interpretation was
poor, the record reflects that an issue with the telephone
connection caused the change. As Man notes, the interview
record acknowledges that “[t]here may be areas of the
individual’s claim that were not explored or documented for
purposes of this threshold screening.” While this statement
supports the proposition that the agency needed to exercise
particular care in relying on omissions from Man’s statements
during the credible fear interview, it did not preclude the
agency from relying on inconsistencies between the credible
fear interview and Man’s subsequent testimony in making an
adverse credibility determination. See Ming Zhang, 585 F.3d
at 724–25 (stressing importance of nature of inconsistency).
4 Given the overall reliability of the record before the agency,
the inconsistencies between Man’s interview statements and
testimony provide substantial evidence for its adverse
credibility determination.
First, the agency reasonably determined that Man’s
testimony that he was detained for 15 days in March 2011 was
inconsistent with his interview statements that he was
detained for only a week. Man did not provide an explanation
for the inconsistency.
Second, the agency reasonably determined that Man’s
testimony and statements at his credible fear interview were
inconsistent regarding why he became a Christian. At his
credible fear interview, Man stated that a friend introduced
him to Christianity after he failed his college exam. At his
agency hearing, however, Man testified that he started
attending church because his coworkers bullied him. The IJ
was not required to credit Man’s explanation that these were
both reasons and that he did not tell his complete story at
his interview, particularly since Man did not explain why he
did not mention failing the exam as a reason for his turn to
Christianity in his testimony. See Majidi v. Gonzales, 430
5 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than
offer a plausible explanation for his inconsistent statements
to secure relief; he must demonstrate that a reasonable fact-
finder would be compelled to credit his testimony.” (internal
quotation marks and citations omitted)).
Finally, Man’s statement at his credible fear interview
that he was arrested and detained seven or eight times was
inconsistent with his testimony that he was arrested and
detained four times. When confronted with this
inconsistency, Man testified that the interview happened only
days after he was taken into immigration custody and the
interpretation was poor.
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18-2305 Man v. Garland BIA Hom, IJ A206 231 032 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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of March, two thousand twenty-one.
PRESENT: BARRINGTON D. PARKER, SUSAN L. CARNEY, WILLIAM J. NARDINI, Circuit Judges. _____________________________________
LIN MAN, Petitioner,
v. 18-2305 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.* _____________________________________
FOR PETITIONER: Gary J. Yerman, The Yerman Group, New York, NY.
FOR RESPONDENT: Lindsay Marshall, Office of Immigration Litigation, United
* The Clerk of Court is directed to amend the caption to conform to the above. States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Lin Man, a native and citizen of the People’s
Republic of China, seeks review of a July 23, 2018 decision
of the BIA affirming an August 11, 2017 decision of an
Immigration Judge (“IJ”) denying Man’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Lin Man, No. A 206
231 032 (B.I.A. July 23, 2018), aff’g No. A 206 231 032 (Immig.
Ct. N.Y.C. Aug. 11, 2017). We assume the parties’
familiarity with the underlying facts and procedural history.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei
Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing
adverse credibility determination under a substantial
2 evidence standard). “Considering the totality of the
circumstances, and all relevant factors, a trier of fact may
base a credibility determination on . . . the consistency
between the applicant’s or witness’s written and oral
statements . . . , the internal consistency of each such
statement, the consistency of such statements with other
evidence of record . . . , and any inaccuracies or falsehoods
in such statements, . . . or any other relevant factor.”
8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
credibility determination unless . . . it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial
evidence supports the agency’s adverse credibility
determination.
The agency reasonably relied on inconsistencies between
Man’s statements at his credible fear interview and his
testimony. As an initial matter, the interview record bore
sufficient “hallmarks of reliability” because the interview
was memorialized in a typewritten list of questions and
answers, Man had an interpreter, his responses indicated that
3 he understood the questions, and the questions addressed past
harm and fear of future harm as needed to elicit an asylum
claim. Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir.
2009) (citing Ramsameachire v. Ashcroft, 357 F.3d 169, 180–
81 (2d Cir. 2004)). Moreover, a representative from Man’s
attorney’s office was present during the interview. Man’s
challenges to the interview record are unsupported. Contrary
to Man’s testimony that they changed the interpreter during
the interview because the quality of the interpretation was
poor, the record reflects that an issue with the telephone
connection caused the change. As Man notes, the interview
record acknowledges that “[t]here may be areas of the
individual’s claim that were not explored or documented for
purposes of this threshold screening.” While this statement
supports the proposition that the agency needed to exercise
particular care in relying on omissions from Man’s statements
during the credible fear interview, it did not preclude the
agency from relying on inconsistencies between the credible
fear interview and Man’s subsequent testimony in making an
adverse credibility determination. See Ming Zhang, 585 F.3d
at 724–25 (stressing importance of nature of inconsistency).
4 Given the overall reliability of the record before the agency,
the inconsistencies between Man’s interview statements and
testimony provide substantial evidence for its adverse
credibility determination.
First, the agency reasonably determined that Man’s
testimony that he was detained for 15 days in March 2011 was
inconsistent with his interview statements that he was
detained for only a week. Man did not provide an explanation
for the inconsistency.
Second, the agency reasonably determined that Man’s
testimony and statements at his credible fear interview were
inconsistent regarding why he became a Christian. At his
credible fear interview, Man stated that a friend introduced
him to Christianity after he failed his college exam. At his
agency hearing, however, Man testified that he started
attending church because his coworkers bullied him. The IJ
was not required to credit Man’s explanation that these were
both reasons and that he did not tell his complete story at
his interview, particularly since Man did not explain why he
did not mention failing the exam as a reason for his turn to
Christianity in his testimony. See Majidi v. Gonzales, 430
5 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than
offer a plausible explanation for his inconsistent statements
to secure relief; he must demonstrate that a reasonable fact-
finder would be compelled to credit his testimony.” (internal
quotation marks and citations omitted)).
Finally, Man’s statement at his credible fear interview
that he was arrested and detained seven or eight times was
inconsistent with his testimony that he was arrested and
detained four times. When confronted with this
inconsistency, Man testified that the interview happened only
days after he was taken into immigration custody and the
interpretation was poor. The IJ was not required to accept
this explanation, however, because the interview record
reflects that Man was detained on September 11, 2013, but his
interview did not occur until September 30, 2013; the record
reflects that Man understood the interpreter because he
provided responsive answers; and, during the interview, Man
was accompanied by a consultant from his attorney’s office
for assistance. See Majidi, 430 F.3d at 80.
Given these inconsistencies, two of which relate to
alleged incidents of persecution, substantial evidence
6 supports the adverse credibility determination. See Xian
Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir.
2006) (holding that “a material inconsistency in an aspect of
[the applicant]’s story that served as an example of the very
persecution from which he sought asylum . . . afforded
substantial evidence to support the adverse credibility
finding” (internal quotation marks omitted)).
The BIA determined that the adverse credibility
determination was dispositive of Man’s past persecution
claim, but separately analyzed, and rejected, Man’s fear of
future persecution based on his claim that he was a practicing
Christian in the United States. Man has waived any challenge
to the agency’s finding on this issue by not addressing the
issue in his brief. See Yueqing Zhang v. Gonzales, 426 F.3d
540, 541 n.1, 545 n.7 (2d Cir. 2005) (petitioner abandons
issues not raised in his brief). Because Man did not meet
the lower burden of establishing eligibility for asylum, he
cannot meet the higher standards for withholding of removal
and CAT protection. See Lecaj v. Holder, 616 F.3d 111, 119
(2d Cir. 2010).
For the foregoing reasons, the petition for review is
7 DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court