19-4296 Shengqi v. Garland BIA
Schoppert, IJ
A 206 796 972
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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 17th day of May, two thousand twenty-two. 5 6 PRESENT: 7 MICHAEL H. PARK, 8 BETH ROBINSON, 9 MYRNA PÉREZ, 10 Circuit Judges. 11 _____________________________________ 12 13 LI SHENGQI, 14 Petitioner, 15 16 v. 19-4296 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Zhou Wang, Esq., New York, NY. 24 25 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 26 Assistant Attorney General; Cindy 27 S. Ferrier, Assistant Director; 28 Kimberly A. Burdge, Trial
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1 Attorney, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC.
5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Petitioner Li Shengqi, a native and citizen of the 10 People’s Republic of China, seeks review of a November 19, 11 2019 decision of the BIA affirming a May 2, 2018 decision of 12 an Immigration Judge (“IJ”) denying his application for 13 asylum, withholding of removal, and protection under the 14 Convention Against Torture (“CAT”). In re Li Shengqi, No. A 15 206 796 972 (B.I.A. Nov. 19, 2019), aff’g No. A 206 796 972 16 (Immig. Ct. N.Y.C. May 2, 2018). We assume the parties’ 17 familiarity with the underlying facts and procedural history. 18 Under the circumstances of this case, we review the IJ’s 19 decision as modified by the BIA and consider only the findings 20 that the BIA relied on. See Xue Hong Yang v. U.S. Dep’t of 21 Justice, 426 F.3d 520, 522 (2d Cir. 2005). We review an 22 adverse credibility determination under a substantial 23 evidence standard, Hong Fei Gao v. Sessions, 891 F.3d 67, 76
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1 (2d Cir. 2018), and “the administrative findings of fact are 2 conclusive unless any reasonable adjudicator would be 3 compelled to conclude to the contrary,” 8 U.S.C. 4 § 1252(b)(4)(B). 5 “Considering the totality of the circumstances, and all 6 relevant factors, a trier of fact may base a credibility 7 determination on the demeanor, candor, or responsiveness of 8 the applicant or witness,” and on inconsistencies within and 9 between an applicant’s statements and other evidence “without 10 regard to whether an inconsistency, inaccuracy, or falsehood 11 goes to the heart of the applicant’s claim, or any other 12 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer 13 . . . to an IJ’s credibility determination unless, from the 14 totality of the circumstances, it is plain that no reasonable 15 fact-finder could make such an adverse credibility 16 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 17 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial 18 evidence supports the agency’s determination that Shengqi was 19 not credible as to his claim that he was arrested, detained, 20 and physically abused for practicing Christianity in China. 21 The agency reasonably relied on the inconsistencies
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1 within Shengqi’s testimony and between his testimony and 2 written statements about how he was treated during his second 3 detention. See 8 U.S.C. § 1158(b)(1)(B)(iii). Shengqi’s 4 initial testimony that he was shocked once with an electric 5 baton while in custody was inconsistent with both his 6 application, which indicated multiple shocks, and his later 7 testimony that he was shocked 15 times. And his application 8 and testimony were inconsistent about what tactics were used 9 to keep him awake, the baton or strong lights. Although 10 Shengqi now argues that he meant he “was attacked with [an] 11 electric baton 15 times” but all of the attacks occurred 12 “during one interrogation,” and that after having shocked him 13 multiple times the police “subsequently shone a light” to 14 prevent him sleeping, he did not provide these explanations 15 to the agency and they do not compel a conclusion that his 16 statements were credible. See Majidi v. Gonzales, 430 F.3d 17 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer 18 a plausible explanation for his inconsistent statements to 19 secure relief; he must demonstrate that a reasonable fact- 20 finder would be compelled to credit his testimony.” (cleaned 21 up)). Moreover, he was questioned about the inconsistencies
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1 and had an opportunity to explain. See Ming Shi Xue v. BIA, 2 439 F.3d 111, 121 (2d Cir. 2006) (holding that IJ may rely on 3 clear inconsistency without soliciting an explanation, but 4 asylum applicant must be provided opportunity to explain 5 inconsistencies that “are not plainly obvious”). 6 The adverse credibility determination is bolstered by 7 the IJ’s assessment of Shengqi’s demeanor. We give 8 “particular deference” to an IJ’s demeanor finding because 9 “the IJ’s ability to observe . . . demeanor places [him] in 10 the best position to evaluate whether apparent problems in 11 the . . . testimony suggest a lack of credibility or, rather, 12 can be attributed to an innocent cause such as difficulty 13 understanding the question.” Li Hua Lin v. U.S. Dep’t of 14 Justice, 453 F.3d 99, 109 (2d Cir. 2006) (citation omitted). 15 Shengqi has waived review of this finding by failing to 16 challenge it in his brief. Norton v. Sam’s Club, 145 F.3d 17 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in 18 the briefs are considered waived and normally will not be 19 addressed on appeal.”). But in any case, the IJ did not 20 misstate the record because Shengqi was unable to answer 21 clarifying questions when asked to explain his inconsistent
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1 statements about his detention. See Li Hua Lin, 453 F.3d at 2 109 (“We can be still more confident in our review of 3 observations about an applicant’s demeanor where . . . they 4 are supported by specific examples of inconsistent 5 testimony.”). 6 Finally, the IJ reasonably concluded that a lack of 7 reliable corroboration prevented Shengqi from otherwise 8 meeting his burden of proof. See 8 U.S.C. 9 § 1158(b)(1)(B)(ii) (“The testimony of the applicant may be 10 sufficient to sustain the applicant’s burden without 11 corroboration, but only if the applicant satisfies the trier 12 of fact that the applicant’s testimony is credible . . 13 . [and] persuasive . . . . In determining whether the 14 applicant has met the . . . burden, the trier of fact may 15 weigh the credible testimony along with other evidence of 16 record.”). The agency was not required to credit letters 17 from individuals in China, and Shengqi’s evidence related to 18 his church attendance in the United States did not resolve 19 the credibility issues. See Y.C. v. Holder, 741 F.3d 324, 20 332, 334 (2d Cir. 2013) (“defer[ring] to the agency’s 21 evaluation of the weight to be afforded an applicant’s
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1 documentary evidence” and upholding agency’s decision to 2 afford little weight to letter from applicant’s spouse in 3 China); Matter of H–L–H & Z–Y–Z–, 25 I. & N. Dec. 209, 215 4 (B.I.A. 2010) (giving diminished evidentiary weight to 5 letters from “relatives and friends” because they were from 6 interested witnesses not subject to cross-examination), rev’d 7 on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d 8 Cir. 2012). 9 In sum, the inconsistencies, demeanor finding, and lack 10 of reliable corroboration provide substantial evidence for 11 the adverse credibility determination and support the 12 agency’s conclusion that Shengqi failed to meet his burden of 13 proof. See 8 U.S.C. § 1158(b)(1)(B)(ii), (iii); Xiu Xia Lin, 14 534 F.3d at 167. This determination is dispositive of 15 asylum, withholding of removal, and CAT relief because all 16 three forms of relief were based on the same factual 17 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d 18 Cir. 2006).
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1 For the foregoing reasons, the petition for review is 2 DENIED. All pending motions and applications are DENIED and 3 stays VACATED.
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court