18-424 Sun v. Barr BIA
Vomacka, IJ
A205 631 399
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 January, two thousand twenty. 5 6 PRESENT: 7 JON O. NEWMAN, 8 JOHN M. WALKER, JR., 9 Circuit Judges.1 10 _____________________________________ 11 12 XIU LAN SUN, 13 Petitioner, 14 15 v. 18-424 16 NAC 17 WILLIAM P. BARR, UNITED STATES 18 ATTORNEY GENERAL, 19 Respondent. 20 _____________________________________ 21 22 FOR PETITIONER: Mike P. Gao, Flushing, NY. 23 24 FOR RESPONDENT: Chad A. Readler Acting Assistant 25 Attorney General; Russell J.E. 26 Verby, Senior Litigation Counsel; 27 John D. Williams, Trial Attorney,
1The panel originally included Circuit Judge Christopher F. Droney, who fully retired from the court on December 31, 2019. This case is decided by the remaining two judges, consistent with section E(b) of the Internal Operating Procedures of the Second Circuit.
1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. 4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Xiu Lan Sun, a native and citizen of the 9 People’s Republic of China, seeks review of a February 6, 10 2018, decision of the BIA affirming a May 17, 2017, decision 11 of an Immigration Judge (“IJ”) denying Sun’s application for 12 asylum, withholding of removal, and relief under the 13 Convention Against Torture (“CAT”). In re Xiu Lan Sun, No. 14 A 205 631 399 (B.I.A. Feb. 6, 2018), aff’g No. A 205 631 399 15 (Immig. Ct. N.Y. City May 17, 2017). We assume the parties’ 16 familiarity with the underlying facts and procedural history 17 in this case. 18 We have reviewed both the BIA’s and IJ’s decisions. See 19 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). 20 The applicable standards of review are well established. See 21 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 22 67, 76–77 (2d Cir. 2018). In making a credibility 23 determination, the agency must “[c]onsider[] the totality of 24 the circumstances” and may base a finding on the applicant’s
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1 “demeanor, candor, or responsiveness . . . , the inherent 2 plausibility of the applicant’s . . . account,” 3 inconsistencies in the applicant’s statements or between her 4 statements and other evidence, “without regard to whether an 5 inconsistency, inaccuracy, or falsehood goes to the heart of 6 the applicant’s claim, or any other relevant factor.” 7 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 8 credibility determination unless, from the totality of the 9 circumstances, it is plain that no reasonable fact-finder 10 could make such an adverse credibility ruling.” Xiu Xia Lin 11 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei 12 Gao, 891 F.3d at 76. As discussed below, substantial 13 evidence supports the adverse credibility determination. 14 The IJ reasonably concluded that Sun’s written statements 15 and testimony offered varying accounts of her alleged 16 persecution—that she was required to have an intrauterine 17 device (“IUD”) in 1986, have pregnancy checks thereafter, and 18 was forced to have an abortion in 2004. See 8 U.S.C. 19 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163–64, 166– 20 67. In her written statements, Sun represented that she was 21 required to have an IUD after she had her first child and 22 when family planning officials discovered she was pregnant 23 with a second child, they “demanded” that she have an abortion
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1 and took her to an operating room where she underwent the 2 procedure. But Sun testified that family planning officers 3 restrained her while a nurse implanted her IUD, and a family 4 planning officer held her down during her abortion. The IJ 5 was not compelled to accept Sun’s explanation that an attorney 6 prepared the statement as it failed to account for the 7 omission of the allegations of physical force, particularly 8 as the IJ had explicitly requested a more detailed written 9 statement. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 10 2005)(“A petitioner must do more than offer a plausible 11 explanation for h[er] inconsistent statements to secure 12 relief; [s]he must demonstrate that a reasonable fact-finder 13 would be compelled to credit h[er] testimony.” (internal 14 quotation marks omitted)). 15 Similarly, Sun’s written statements failed to mention 16 her employment at a state-owned factory, much less any adverse 17 workplace repercussions stemming from her abortion. In 18 contrast, Sun testified that after her abortion, her salary 19 was reduced, and she was targeted for disciplinary 20 infractions. The IJ was not required to accept Sun’s 21 explanation that she did not know to include these facts and 22 was entitled to rely on these omissions as they were direct 23 consequences of her violation of the family planning policy
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1 that a credible petitioner would be expected to disclose under 2 the circumstances. See id; Hong Fei Gao, 891 F.3d at 78–79. 3 The IJ also reasonably concluded that aspects of Sun’s 4 testimony were implausible and more consistent with a 5 voluntary abortion, given that she testified to lesser 6 restrictions—birth control pills that she voluntarily ceased 7 using without consequence rather than an IUD—after the 8 abortion. See 8 U.S.C. § 1158(b)(1)(B)(iii); see Siewe v. 9 Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007) (“[S]peculation 10 that inheres in inference is not ‘bald’ if the inference is 11 made available to the factfinder by record facts . . . in the 12 light of common sense and ordinary experience.”). Nor did 13 the IJ err in relying on Sun’s three voluntary returns to 14 China prior to seeking asylum in the United States, as 15 undermining Sun’s fear of future harm. See Kone v. Holder, 16 596 F.3d 141, 150–51 (2d Cir. 2010) (holding that while 17 “return trips alone are insufficient to establish lack of 18 credibility,” an IJ may consider them in connection with other 19 findings). 20 The IJ also reasonably relied on Sun’s lack of reliable 21 corroboration. “An applicant’s failure to corroborate his 22 or her testimony may bear on credibility, because the absence 23 of corroboration in general makes an applicant unable to
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1 rehabilitate testimony that has already been called into 2 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 3 2007). As the IJ found, Sun had no employment or medical 4 records to substantiate her claim. See Chuilu Liu v. Holder, 5 575 F.3d 193, 198 (2d Cir. 2009) (“[T]he alien bears the 6 ultimate burden of introducing [corroborating] evidence.”). 7 The IJ did not err in declining to credit the letter from 8 Sun’s mother as it did not mention the IUD or workplace issues 9 or give any detail about the abortion, and it was from an 10 interested witness not subject to cross-examination. See 11 Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring 12 to agency’s decision to afford little weight to spouse’s 13 letter from China because it was unsworn and from an 14 interested witness); Matter of H-L-H- & Z-Y-Z-, 25 I. & N. 15 Dec. 209, 215 (B.I.A. 2010) (finding that letters from alien’s 16 friends and family were insufficient support for claims 17 because they were from interested witnesses not subject to 18 cross-examination), overruled on other grounds by Hui Lin 19 Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012). 20 Given the variance among Sun’s written statements and 21 testimony, the implausible aspects of her claim, her multiple 22 returns to China, and the lack of corroboration, the “totality 23 of the circumstances” supports the adverse credibility
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1 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 2 Lin, 534 F.3d at 167. That determination is dispositive of 3 asylum, withholding of removal, and CAT relief because all 4 three claims are based on the same factual predicate. See 5 Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006). 6 For the foregoing reasons, the petition for review is 7 DENIED. As we have completed our review, any stay of removal 8 that the Court previously granted in this petition is VACATED, 9 and any pending motion for a stay of removal in this petition 10 is DISMISSED as moot. Any pending request for oral argument 11 in this petition is DENIED in accordance with Federal Rule of 12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 13 34.1(b).
14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court