Shijie Lin v. Sessions

Opinion

17-842 Shijie Lin v. Sessions BIA

Poczter, IJ

A208 154 298

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 8th day of June, two thousand eighteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 GUIDO CALABRESI, 9 JOSÉ A. CABRANES, 10 Circuit Judges. 11 _____________________________________ 12 13 SHIJIE LIN, 14 Petitioner, 15 16 v. 17-842 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Norman Kwai Wing Wong, New York, 24 NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Jonathan A. 28 Robbins, Senior Litigation 29 Counsel; Tracey N. McDonald, Trial

2

1 Attorney, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC. 5 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 Petitioner Shijie Lin, a native and citizen of the 11 People’s Republic of China, seeks review of a March 8, 2017, 12 decision of the BIA affirming a July 5, 2016, decision of an 13 Immigration Judge (“IJ”) denying his application for asylum, 14 withholding of removal, and relief under the Convention 15 Against Torture (“CAT”). In re Lin Shijie, No. A 208 154 298 16 (B.I.A. Mar. 8, 2017), aff’g No. A 208 154 298 (Immig. Ct. 17 N.Y. City July 5, 2016). We assume the parties’ familiarity 18 with the underlying facts and procedural history in this case. 19 Under the circumstances of this case, we have reviewed 20 both the IJ’s decision and the BIA’s decision “for the sake 21 of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 22 F.3d 524, 528 (2d Cir. 2006). The standards of review are

3

1 well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin 2 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 3 The agency may, “[c]onsidering the totality of the 4 circumstances,” base an adverse credibility determination on 5 inconsistencies or omissions in an applicant’s oral and 6 written statements and other record evidence, regardless of 7 whether any such discrepancies “go[] to the heart of the 8 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 9 Lin, 534 F.3d at 163-64, 166-67. “We defer . . . to an IJ’s 10 credibility determination unless . . . it is plain that no 11 reasonable fact-finder could make such an adverse credibility 12 ruling.” Xiu Xia Lin, 534 F.3d at 167. The adverse 13 credibility determination is supported by substantial 14 evidence. 15 The agency reasonably relied on a series of 16 inconsistencies and omissions relating to Shijie Lin’s 17 allegations of past harm. First, as the IJ found, Shijie Lin 18 testified to receiving medical treatment following his 19 detention, but his application and his father’s letter 20 omitted that information. See id. (upholding agency’s 21 reliance on omissions from supporting letters).

4

1 Although “asylum applicants are not required to list every 2 incident of persecution” in their applications, Pavlova v. 3 INS, 441 F.3d 82, 90 (2d Cir. 2006), where, as here, an asylum 4 application otherwise contained detailed information about 5 events, the IJ’s reliance on the omission was reasonable, see 6 Lianping Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016) 7 (affirming adverse credibility determination when 8 petitioner’s “asylum application did not simply omit 9 incidents of persecution . . . [but rather] described the 10 same incidents of persecution differently”). The agency was 11 not required to credit Shijie Lin’s explanation that both he 12 and his father omitted the treatment because it was brief and 13 at a private clinic. See Majidi v. Gonzales, 430 F.3d 77, 14 80-81 (2d Cir. 2005) (“A petitioner must do more than offer 15 a plausible explanation for his inconsistent statements to 16 secure relief; he must demonstrate that a reasonable fact- 17 finder would be compelled to credit his testimony.” (internal 18 quotation marks omitted)). 19 Second, the agency also reasonably relied on Shijie Lin’s 20 inconsistent descriptions of his beating. See Lianping Li, 21 839 F.3d at 150. Shijie Lin testified that he was struck

5

1 three or four times with a wooden rod on the day of his 2 arrest. But in response to the credible fear interviewer 3 asking “[h]ow many times did they hit you with the wooden rod 4 the day you were arrested,” Shijie Lin stated that he was 5 only struck once. Given the precise question at the 6 interview, the IJ reasonably relied on this inconsistency. 7 See Ming Zhang v. Holder, 585 F.3d 715, 724-25 (2d Cir. 2009) 8 (explaining that one sign of reliability of an interview is 9 whether the interviewer asked questions designed to elicit a 10 possible asylum claim). Although Shijie Lin’s interpretation 11 that he meant one beating, not one strike, is plausible, the 12 IJ’s alternate interpretation is also supported by the 13 record. See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 14 2007) (“Where there are two permissible views of the evidence, 15 the factfinder's choice between them cannot be clearly 16 erroneous. . . . Rather, a reviewing court must defer to that 17 choice so long as the deductions are not illogical or 18 implausible.” (internal citations and quotation marks 19 omitted)). 20 Third and finally, the agency reasonably relied on 21 inconsistent statements about whether Shijie Lin’s aunt

6

1 called to warn him that the police were looking for him. See 2 Xiu Xia Lin, 534 F.3d at 167. Shijie Lin testified that his 3 aunt called, but her letter omitted that fact and mentions 4 only that Shijie Lin’s mother called her to say Shijie Lin 5 would be arriving at her home. Shijie Lin did not have a 6 compelling explanation for the omission. See Majidi, 430 7 F.3d at 80. 8 Taken as a whole, these inconsistencies and omissions 9 provide substantial evidence for the adverse credibility 10 determination. See Xiu Xia Lin, 534 F.3d at 167. Because 11 Shijie Lin’s claims were all based on the same factual 12 predicate, the adverse credibility determination is 13 dispositive of asylum, withholding of removal, and CAT 14 relief. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 15 2006). 16 For the foregoing reasons, the petition for review is 17 DENIED. As we have completed our review, any stay of removal 18 that the Court previously granted in this petition is VACATED, 19 and any pending motion for a stay of removal in this petition 20 is DISMISSED as moot. Any pending request for oral argument 21 in this petition is DENIED in accordance with Federal Rule of

7

1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 2 34.1(b).

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5 Clerk of Court