Qian v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: November 28, 2023
• Docket: 22-6012
• Status: Unpublished

Opinion

22-6012 Qian v. Garland BIA Zagzoug, IJ A215 993 009/010 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.

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 29th day of November, two thousand twenty-three.

PRESENT: JOHN M. WALKER, JR., MICHAEL H. PARK, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

FUQIANG QIAN, QIUYUE JIANG, Petitioners,

v. 22-6012-ag

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONERS: Gary J. Yerman, The Yerman Group, LLC, New York, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Brendan P. Hogan, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. 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.

Petitioners, Fuqiang Qian (“Qian”) and Qiuyue Jiang (“Jiang”), natives and

citizens of the People’s Republic of China, seek review of a December 30, 2021, decision

of the BIA affirming a March 29, 2019, decision of an Immigration Judge (“IJ”) denying

Jiang’s application for asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”). See In re Qiuyue Jiang, Fuqiang Qian, Nos. A 215 993

009/010 (B.I.A. Dec. 30, 2021), aff’g Nos. A 215 993 009/010 (Immig. Ct. N.Y. City

Mar. 29, 2019). We assume the parties’ familiarity with the underlying facts and

procedural history.

We review both the IJ’s and the BIA’s decisions “for the sake of completeness.”

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review

adverse credibility determinations “under the substantial evidence standard” and we

review questions of law and application of law to fact de novo. Hong Fei Gao v.

Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B).

“[A] person who has been forced to abort a pregnancy . . . or who has been

persecuted . . . for other resistance to a coercive population control program, shall be

deemed to have been persecuted on account of political opinion, and a person who has a

2 well founded fear that he or she will be . . . subject to persecution for such failure, refusal,

or resistance shall be deemed to have a well founded fear of persecution on account of

political opinion.” 8 U.S.C. § 1101(a)(42). The asylum applicant bears the burden of

proof in establishing that the applicant is a refugee within the meaning of 8 U.S.C. §

1101(a)(42). See id. § 1158(b)(1)(B)(i). “The testimony of the applicant may be

sufficient to sustain the applicant’s burden without corroboration, but only if the

applicant satisfies the trier of fact that the . . . testimony is credible, is persuasive, and

refers to specific facts sufficient to demonstrate that the applicant is a refugee. In

determining whether the applicant has met the applicant’s burden, the trier of fact may

weigh the credible testimony along with other evidence of record.” Id.

§ 1158(b)(1)(B)(ii).

[A] trier of fact may base a credibility determination on . . . the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), 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, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.

Id. § 1158(b)(1)(B)(iii).

The agency made an adverse credibility determination against Jiang and separately

determined that the record evidence did not corroborate Jiang’s claim. Substantial

evidence supports the agency’s determination that Jiang did not meet her burden of proof

given the credibility issues and lack of corroboration. See Xiao Ji Chen v. U.S. Dep’t of

3 Just., 471 F.3d 315, 341 (2d Cir. 2006).

Substantial evidence supports the agency’s adverse credibility determination

because Jiang’s testimony was internally inconsistent and inconsistent with her written

statement and documentary evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii).

First, Jiang initially testified that she was forced to have two abortions. On cross-

examination, however, she explained that she meant she was persecuted twice, the first

time being when she was required to have an IUD inserted on May 20, 2012, after the

birth of her first child. But this explanation conflicted with her application, which

reported that she was forced to have the IUD inserted on that date in 2010. Even though

Jiang’s explanation that she made the statement because she was nervous is plausible, on

our review for substantial evidence, we cannot say that the agency was required to accept

Jiang’s explanation. See Majidi v. Gonzales, 430 F.3d 77, 80–81 (2d Cir. 2005) (“A

petitioner must do more than offer a plausible explanation for h[er] inconsistent

statements to secure relief; [s]he must demonstrate that a reasonable fact-finder would

be compelled to credit h[er] testimony.” (citation and quotation marks omitted)); see also

Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009) (“We again reject the notion

that a petitioner’s claim that she was nervous and distracted during the credible fear

interview automatically undermines or negates its reliability as a source of her

statements.”).

Second, Jiang made inconsistent statements about the fine imposed for the

4 unauthorized pregnancy. 1 She stated at her asylum interview and initially testified that

family planning officials came to her home and asked her to pay 130,000 renminbi, but

she later testified inconsistently that those officials asked her husband to pay the fine and

that only he was present. When she was asked to explain, Jiang stated that a doctor

spoke with her husband about the fine in 2016, but she then contradicted herself, stating

that it was actually a family planning official that spoke with him. The agency was not

compelled to accept her varying and inconsistent statements and explanations. See

Majidi, 430 F.3d at 79–80.

Finally, the agency deemed it implausible that Jiang did not know that a forced

abortion was a possible consequence of a family planning violation; we find that

determination “reasonable.” Ming Xia Chen v. BIA, 435 F.3d 141, 146 (2d Cir. 2006).

We defer to the agency’s inferences as long as they are “made available to the factfinder

by record facts, or even a single fact, viewed in the light of common sense and ordinary

experience.” Siewe v. Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007). Here, it cannot

be said that the IJ’s inference was based on bald speculation, see id., because of (1)

Jiang’s testimony that she thought she could “give the birth” if she had “the connection to

pay the fine,” Certified Admin. Record at 132, and (2) the large number of claims of

1 The agency erred in stating that Jiang did not mention a fine in her written statement; she mentioned it but did not provide details. This error does not require remand given the other grounds for the agency’s adverse credibility determination. See Li Hua Lin v. U.S. Dep’t of Just., 453 F.3d 99, 107 (2d Cir. 2006) (clarifying that remand is not required when an IJ’s “reliance on the erroneous aspect of . . . reasoning is substantially tangential to . . . non-erroneous findings”).

5 coerced and forced abortions brought as the basis for asylum from Chinese nationals, see,

e.g., Jian Hui Shao v. Mukasey, 546 F.3d 138, 142 (2d Cir. 2008) (noting that “hundreds

of petitions for review” of claims of forced abortion or sterilizations are brought by

Chinese nationals).

Furthermore, the agency did not err in finding that Jiang’s documentary evidence

failed to rehabilitate her credibility or otherwise corroborate her claim. See

8 U.S.C. § 1158(b)(1)(B)(ii). Jiang explained that she had no documentation of the fine

because she did not pay it, but that does not explain why there was no written statement

or testimony from her husband to corroborate the fine. See Yan Juan Chen v. Holder,

658 F.3d 246, 253 (2d Cir. 2011) (“[B]ecause [petitioner] and her husband had a common

interest in her presenting the strongest possible case, it is not unfair to hold her

responsible for her husband’s decision not to testify. . . .”). And Jiang’s medical records

did not clearly corroborate a forced abortion given that the records (1) included both a

reference to a live birth and a note that the termination was requested, and (2) reflected

possible problems with the pregnancy. The agency reasonably found that this

documentation raised more questions than it answered. Jiang’s explanation that the

doctor who prepared the report was unprofessional is not compelling given her burden of

proof and lack of affirmative explanation or clarification about the meaning of the

records she submitted. See 8 U.S.C. § 1158(b)(1)(B)(ii); Majidi, 430 F.3d at 80.

In sum, the inconsistencies in Jiang’s own testimony and between her testimony

and the evidence in the record call her credibility into question, and the combination of

6 the credibility issues and the lack of any meaningful corroboration of her claims supports

the agency’s conclusion that Jiang failed to satisfy her burden of proof. See 8 U.S.C. §

1158(b)(1)(B)(ii), (iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (“We

defer . . . to an IJ’s credibility determination unless, from the totality of the

circumstances, it is plain that no reasonable fact-finder could make such an adverse

credibility ruling.”). These determinations are dispositive of asylum, withholding of

removal, and CAT relief because all three claims are based on the same factual predicate.

See Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010); Paul v. Gonzales, 444 F.3d

148, 156–57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is DENIED. All pending

motions and applications are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court