Sun v. Barr

Opinion

17-2800 Sun v. Barr BIA

Leeds, IJ

A205 240 400

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 13th day of August, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 DEBRA ANN LIVINGSTON, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 XIAOQIAN SUN, 14 Petitioner, 15 16 v. 17-2800 17 NAC 18 WILLIAM P. BARR, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Wei Gu, Albertson, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; John S. Hogan, 27 Assistant Director; Matthew A. 28 Spurlock, Trial Attorney, Office 29 of Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC.

1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Xiaoqian Sun, a native and citizen of the 6 People’s Republic of China, seeks review of an August 16, 7 2017, decision of the BIA affirming a February 3, 2017, 8 decision of an Immigration Judge (“IJ”) denying Sun’s 9 application for asylum, withholding of removal, and relief 10 under the Convention Against Torture (“CAT”). In re Xiaoqian 11 Sun, No. A 205 240 400 (B.I.A. Aug. 16, 2017), aff’g No. A 205 12 240 400 (Immig. Ct. N.Y. City Feb. 3, 2017). We assume the 13 parties’ familiarity with the underlying facts and procedural 14 history in this case. 15 Under the circumstances of this case, we have reviewed 16 both the IJ’s and BIA’s decisions. Wangchuck v. Dep’t of 17 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review 18 adverse credibility determinations under a substantial 19 evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei 20 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). The 21 governing REAL ID Act credibility standard provides as

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1 follows:

2 Considering the totality of the circumstances, and 3 all relevant factors, a trier of fact may base a 4 credibility determination on the demeanor, candor, 5 or responsiveness of the applicant or witness, the 6 inherent plausibility of the applicant’s or 7 witness’s account, the consistency between the 8 applicant’s or witness’s written and oral statements 9 . . . the internal consistency of each such 10 statement, the consistency of such statements with 11 other evidence of record . . . and any inaccuracies 12 or falsehoods in such statements, without regard to 13 whether an inconsistency, inaccuracy, or falsehood 14 goes to the heart of the applicant’s claim, or any 15 other relevant factor. 16 17 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s

18 credibility determination unless . . . it is plain that no 19 reasonable fact-finder could make such an adverse credibility 20 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 21 2008); see 8 U.S.C. § 1252(b)(4)(B). As discussed below, 22 substantial evidence supports the agency’s determination that 23 Sun was not credible. 24 “[A] material inconsistency in an aspect of [the 25 applicant]’s story that served as an example of the very 26 persecution from which [s]he sought asylum” can provide 27 substantial evidence for an adverse credibility ruling. Xian 28 Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir.

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1 2006) (quoting Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir. 2 2005)). Although “asylum applicants are not required to list 3 every incident of persecution” in their applications, Pavlova 4 v. INS, 441 F.3d 82, 90 (2d Cir. 2006), the agency may 5 reasonably conclude that an applicant lacks credibility if 6 her application and testimony “described the same incidents 7 of persecution differently,” Lianping Li v. Lynch, 839 F.3d 8 144, 150 (2d Cir. 2016). Moreover, “IJs must distinguish 9 between (1) omissions that arise merely because an 10 applicant’s oral testimony is more detailed than his or her 11 written application, and (2) omissions that tend to show that 12 an applicant has fabricated his or her claim.” Hong Fei Gao, 13 891 F.3d at 82. 14 In Sun’s case, the agency reasonably found that her 15 supplemental statement and testimony contradicted, rather 16 than supplemented, her initial description of her abortion, 17 and suggested that she had fabricated her claim. Absent the 18 additional information that the abortion was forced, Sun’s 19 application did not state an asylum claim. See 8 U.S.C. 20 § 1101(a)(42) (extending refugee definition to cover “person 21 who has been forced to abort a pregnancy or to undergo

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1 involuntary sterilization” (emphasis added)). Whereas Sun’s 2 asylum application and initial statement alleged that she had 3 an abortion under pressure from her ex-boyfriend’s parents, 4 she made no mention of any involvement of family planning 5 authorities. By contrast, her supplemental statement and 6 testimony claimed that two family planning officers came to 7 her parent’s home, “dragged” her to the local hospital, and 8 physically compelled her to have an abortion. 9 The IJ was not required to credit Sun’s explanation that 10 she did not know which details to include in her initial 11 statement because she was represented by counsel and her 12 initial statement described the involvement of family 13 planning authorities in her mother’s forced abortion in 1999. 14 See Majidi, 430 F.3d at 80 (“A petitioner must do more than 15 offer a plausible explanation for [her] inconsistent 16 statements to secure relief; [s]he must demonstrate that a 17 reasonable fact-finder would be compelled to credit [her] 18 testimony.” (internal quotation marks and citations 19 omitted)). 20 The agency also reasonably found that Sun’s corroborating 21 evidence did not rehabilitate her testimony. See Biao Yang

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1 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The IJ gave 2 full weight to the medical records of Sun’s 2007 abortion but 3 concluded that they did not state or imply that Sun’s abortion 4 was involuntary. And the IJ was permitted to give limited 5 weight to the letters from Sun’s mother, friend, and ex- 6 boyfriend, none of whom were available for cross examination. 7 See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013). 8 Moreover, only the ex-boyfriend stated that family planning 9 officials forced Sun to have an abortion; Sun’s mother and 10 friend did not state whether the abortion was forced or 11 voluntary. 12 The material inconsistency regarding whether Sun’s 13 abortion was forced or voluntary provided substantial 14 evidence for the adverse credibility ruling. See Xian Tuan 15 Ye, 446 F.3d at 295; Majidi, 430 F.3d at 81. Because Sun’s 16 claims were all based on the same factual predicate, the 17 adverse credibility determination is dispositive of asylum, 18 withholding of removal, and CAT relief. Paul v. Gonzales, 19 444 F.3d 148, 156-57 (2d Cir. 2006). 20 For the foregoing reasons, the petition for review is 21 DENIED. As we have completed our review, any stay of removal

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1 that the Court previously granted in this petition is VACATED, 2 and any pending motion for a stay of removal in this petition 3 is DISMISSED as moot. Any pending request for oral argument 4 in this petition is DENIED in accordance with Federal Rule of 5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 6 34.1(b).

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court