17-1828 Tan v. Barr BIA Bukszpan, IJ A205 886 707 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 29th day of May, two thousand nineteen. 5 6 PRESENT: 7 ROBERT D. SACK, 8 CHRISTOPHER F. DRONEY, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 HAI TAN, 14 Petitioner, 15 16 v. 17-1828 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jim Li, Flushing, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Kiley Kane, 27 Senior Litigation Counsel; Ann M. 28 Welhaf, Trial Attorney, Office of 29 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 Hai Tan, a native and citizen of the People’s
6 Republic of China, seeks review of a May 15, 2017, decision
7 of the BIA affirming a September 19, 2016, decision of an
8 Immigration Judge (“IJ”) denying asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Hai Tan, No. A205 886 707 (B.I.A. May 15,
11 2017), aff’g No. A205 886 707 (Immig. Ct. N.Y. City Sept. 19,
12 2016). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 We have reviewed the IJ’s decision as modified by the
15 BIA, which did not consider the IJ’s findings regarding Tan’s
16 U.S. visa. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
17 F.3d 520, 522 (2d Cir. 2005). The applicable standards of
18 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
19 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
20 “Considering the totality of the circumstances, and all
21 relevant factors, a trier of fact may base a credibility
22 determination on . . . the inherent plausibility of the
2 1 applicant’s or witness’s account, the consistency between the
2 applicant’s or witness’s written and oral statements . . . ,
3 the internal consistency of each such statement, [and] the
4 consistency of such statements with other evidence of record
5 . . . without regard to whether an inconsistency, inaccuracy,
6 or falsehood goes to the heart of the applicant’s claim, or
7 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii);
8 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008).
9 Substantial evidence supports the agency’s determination that
10 Tan was not credible as to his claim that he has three
11 children (two daughters and a son) in violation of China’s
12 family planning policy and that he was persecuted and fears
13 harm on that account.
14 The agency reasonably relied in part on Tan’s submission
15 to the immigration court of a fraudulent household register
16 designed to support his claim that he has three children.
17 See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)
18 (providing that an applicant’s presentation of “a single
19 false document or a single instance of false testimony may
20 (if attributable to the petitioner)” influence an IJ’s
21 credibility determination); Borovikova v. U.S. Dep’t of
22 Justice, 435 F.3d 151, 157-58 (2d Cir. 2006) (concluding that
3 1 submission of a fraudulent document to support asylum
2 application may alone constitute substantial evidence
3 warranting an adverse credibility finding); see also In re O-
4 D-, 21 I. & N. Dec. 1079, 1083 (BIA 1998) (holding that an
5 asylum applicant’s “presentation of at least one counterfeit
6 document, and probably two, submitted to prove a central
7 element of the claim in an asylum adjudication” may be relied
8 on to discredit other evidence and to find the applicant not
9 credible).
10 The agency also reasonably found the record inconsistent
11 regarding the purpose of the fraudulent document. See
12 8 U.S.C. § 1158(b)(1)(B)(iii). Tan testified variously that
13 his daughters never had another household register, that they
14 may have had an earlier register, that they had a register at
15 birth, and finally that they obtained the fraudulent register
16 when they were 6 years old so they could attend a specific
17 school. Tan’s testimony was inconsistent with the register,
18 which provided that the daughters were registered for the
19 first time when they were 11 and 8 years old.
20 At the conclusion of Tan’s merits hearing, the IJ
21 continued proceedings to give Tan an opportunity to further
22 corroborate his claim that he has three children. The IJ
4 1 specifically requested Tan’s daughters’ school records, their
2 birth records, a family register, and Tan’s visa application
3 for South Korea (to see if Tan listed his daughters in that
4 application). The IJ did not err in finding that Tan failed
5 to rehabilitate his claim with reliable evidence
6 corroborating that he has two daughters because, despite the
7 continuance, Tan failed to supply his daughters’ school
8 records or his visa application as requested. See Biao Yang
9 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s
10 failure to corroborate his or her testimony may bear on
11 credibility, because the absence of corroboration in general
12 makes an applicant unable to rehabilitate testimony that has
13 already been called into question.”).
14 Further, the IJ reasonably declined to credit the
15 evidence that Tan submitted, which included (1) hospital
16 birth certificates issued in 2012 but not submitted before
17 his 2016 hearing, (2) a 2015 household register that listed
18 Tan as head of household and included his wife, son, and
19 daughters despite his 2016 testimony that his daughters were
20 registered separately, and (3) a handwritten letter stating
21 that Tan is the father of his three children that was stamped
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17-1828 Tan v. Barr BIA Bukszpan, IJ A205 886 707 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 29th day of May, two thousand nineteen. 5 6 PRESENT: 7 ROBERT D. SACK, 8 CHRISTOPHER F. DRONEY, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 HAI TAN, 14 Petitioner, 15 16 v. 17-1828 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jim Li, Flushing, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Kiley Kane, 27 Senior Litigation Counsel; Ann M. 28 Welhaf, Trial Attorney, Office of 29 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 Hai Tan, a native and citizen of the People’s
6 Republic of China, seeks review of a May 15, 2017, decision
7 of the BIA affirming a September 19, 2016, decision of an
8 Immigration Judge (“IJ”) denying asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Hai Tan, No. A205 886 707 (B.I.A. May 15,
11 2017), aff’g No. A205 886 707 (Immig. Ct. N.Y. City Sept. 19,
12 2016). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 We have reviewed the IJ’s decision as modified by the
15 BIA, which did not consider the IJ’s findings regarding Tan’s
16 U.S. visa. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
17 F.3d 520, 522 (2d Cir. 2005). The applicable standards of
18 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
19 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
20 “Considering the totality of the circumstances, and all
21 relevant factors, a trier of fact may base a credibility
22 determination on . . . the inherent plausibility of the
2 1 applicant’s or witness’s account, the consistency between the
2 applicant’s or witness’s written and oral statements . . . ,
3 the internal consistency of each such statement, [and] the
4 consistency of such statements with other evidence of record
5 . . . without regard to whether an inconsistency, inaccuracy,
6 or falsehood goes to the heart of the applicant’s claim, or
7 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii);
8 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008).
9 Substantial evidence supports the agency’s determination that
10 Tan was not credible as to his claim that he has three
11 children (two daughters and a son) in violation of China’s
12 family planning policy and that he was persecuted and fears
13 harm on that account.
14 The agency reasonably relied in part on Tan’s submission
15 to the immigration court of a fraudulent household register
16 designed to support his claim that he has three children.
17 See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)
18 (providing that an applicant’s presentation of “a single
19 false document or a single instance of false testimony may
20 (if attributable to the petitioner)” influence an IJ’s
21 credibility determination); Borovikova v. U.S. Dep’t of
22 Justice, 435 F.3d 151, 157-58 (2d Cir. 2006) (concluding that
3 1 submission of a fraudulent document to support asylum
2 application may alone constitute substantial evidence
3 warranting an adverse credibility finding); see also In re O-
4 D-, 21 I. & N. Dec. 1079, 1083 (BIA 1998) (holding that an
5 asylum applicant’s “presentation of at least one counterfeit
6 document, and probably two, submitted to prove a central
7 element of the claim in an asylum adjudication” may be relied
8 on to discredit other evidence and to find the applicant not
9 credible).
10 The agency also reasonably found the record inconsistent
11 regarding the purpose of the fraudulent document. See
12 8 U.S.C. § 1158(b)(1)(B)(iii). Tan testified variously that
13 his daughters never had another household register, that they
14 may have had an earlier register, that they had a register at
15 birth, and finally that they obtained the fraudulent register
16 when they were 6 years old so they could attend a specific
17 school. Tan’s testimony was inconsistent with the register,
18 which provided that the daughters were registered for the
19 first time when they were 11 and 8 years old.
20 At the conclusion of Tan’s merits hearing, the IJ
21 continued proceedings to give Tan an opportunity to further
22 corroborate his claim that he has three children. The IJ
4 1 specifically requested Tan’s daughters’ school records, their
2 birth records, a family register, and Tan’s visa application
3 for South Korea (to see if Tan listed his daughters in that
4 application). The IJ did not err in finding that Tan failed
5 to rehabilitate his claim with reliable evidence
6 corroborating that he has two daughters because, despite the
7 continuance, Tan failed to supply his daughters’ school
8 records or his visa application as requested. See Biao Yang
9 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s
10 failure to corroborate his or her testimony may bear on
11 credibility, because the absence of corroboration in general
12 makes an applicant unable to rehabilitate testimony that has
13 already been called into question.”).
14 Further, the IJ reasonably declined to credit the
15 evidence that Tan submitted, which included (1) hospital
16 birth certificates issued in 2012 but not submitted before
17 his 2016 hearing, (2) a 2015 household register that listed
18 Tan as head of household and included his wife, son, and
19 daughters despite his 2016 testimony that his daughters were
20 registered separately, and (3) a handwritten letter stating
21 that Tan is the father of his three children that was stamped
22 at a police station when he testified that his wife had bribed
5 1 a relative who worked for the police to create fake documents.
2 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342
3 (2d Cir. 2006) (holding that weight afforded to applicant’s
4 evidence is largely within agency discretion); see also
5 Siewe, 480 F.3d at 170 (“[W]here an IJ’s finding of
6 fabrication (supported by substantial evidence) serves as the
7 basis for discrediting other evidence, a reviewing court is
8 in no position to conclude that the discrediting of the
9 remaining evidence is unsupported by substantial evidence.”).
10 The IJ also reasonably questioned the existence of Tan’s
11 daughters given that Tan did not submit any evidence of his
12 daughters’ existence created before 2010 although they were
13 born in 1999 and 2004. See Biao Yang, 496 F.3d at 273.
14 Given the fraud, inconsistency, and lack of corroboration
15 findings, the agency’s adverse credibility determination is
16 supported by substantial evidence. See 8 U.S.C.
17 § 1158(b)(1)(B)(iii); see also Siewe, 480 F.3d at 170; Biao
18 Yang, 496 F.3d at 273. The credibility determination is
19 dispositive of asylum, withholding of removal, and CAT relief
20 because all three claims are based on the same factual
21 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
22 Cir. 2006).
6 1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT: 10 Catherine O’Hagan Wolfe 11 Clerk of Court