Wang v. Whitaker

Opinion

17-1009 Wang v. Whitaker BIA

Loprest, IJ

A094 922 413

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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 11th day of December, two thousand eighteen. 5 6 PRESENT: 7 JON O. NEWMAN, 8 DENNIS JACOBS, 9 PETER W. HALL, 10 Circuit Judges. 11 _____________________________________ 12 13 HAI YING WANG, 14 Petitioner, 15 16 v. 17-1009 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jay Ho Lee, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting 26 Assistant Attorney General; 27 Stephen J. Flynn, Assistant 28 Director; Jeffrey R. Meyer, 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, 32 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 Ying Wang, a native and citizen of the 6 People’s Republic of China, seeks review of a March 16, 7 2017, decision of the BIA affirming a December 7, 2015, 8 decision of an Immigration Judge (“IJ”) denying Wang’s 9 application for asylum, withholding of removal, and relief 10 under the Convention Against Torture (“CAT”). In re Hai 11 Ying Wang, No. A094 922 413 (B.I.A. Mar. 16, 2017), aff’g 12 No. A094 922 413 (Immig. Ct. N.Y. City Dec. 7, 2015). 13 Under the circumstances of this case, we have reviewed 14 the IJ’s decision as modified by the BIA and consider only 15 the adverse credibility determination. See Xue Hong Yang v. 16 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 17 The applicable standards of review are well established. 18 See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 19 F.3d 162, 165-66 (2d Cir. 2008). The following facts and 20 procedural history are relevant to our review of the 21 agency’s adverse credibility determination. 22 Wang entered the United States in 2006 and initially 23 applied for asylum based on her fear of forced

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1 sterilization under China’s family planning policy. Wang 2 testified before an IJ in Arizona in March 2010, and in 3 August 2010, the IJ made an adverse credibility finding and 4 denied relief. On appeal to the BIA, Wang added a new basis 5 for asylum: she alleged a fear of persecution in China as a 6 practitioner of Falun Gong. She alleged that she had begun 7 practicing Falun Gong in New York in May 2010 -- after her 8 final hearing before the IJ -- that she had been 9 photographed engaging in a September 2010 protest of the 10 Chinese government’s treatment of Falun Gong practitioners, 11 that her activities had been reported to the Chinese 12 government, and that, by early October 2010, officials had 13 visited her mother-in-law and delivered a warning and 14 written notice that Wang would be severely punished if she 15 did not cease her Falun Gong activities. The BIA affirmed 16 the IJ’s adverse credibility determination, but remanded 17 for the IJ to consider the new Falun Gong claim in the 18 first instance. On remand, venue was changed from Arizona 19 to New York at Wang’s request. 20 At a hearing before a new IJ in December 2014, Wang 21 reiterated that she began practicing Falun Gong in May 22 2010, and asserted that she first attended a protest or 23 rally in September 2010, which led to Chinese officials

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1 threatening her family in China in October 2010. She 2 explained that she began practicing because she was upset 3 following her final hearing on her family planning claim 4 and a friend suggested that Falun Gong would help her 5 mental and physical health. Wang produced an October 7, 6 2010, village committee notice that her mother-in-law 7 allegedly received, in which the committee stated it was 8 aware of Wang’s Falun Gong activities and instructed Wang 9 to stop those activities and return to China for 10 punishment. Wang’s attorney purportedly sent a redacted 11 copy of the notice to China, and the Fuzhou City Mawei 12 District Lanqi Town Feng Wo Village Committee responded 13 with a letter confirming “the format of the notice, the 14 content, the issuing date, and the official seal of the 15 notice,” as well as the paper and the seal. The redaction 16 apparently obscured Wang’s name. 17 In December 2015, the IJ in New York issued a written 18 decision concluding that Wang was not credible. The IJ 19 specified the prior adverse credibility determination as a 20 factor, and made additional findings. Wang’s “conversion to 21 the discipline of Falun Gong [was] suspiciously well-timed, 22 coming as it [did] on the heels of the denial of her first 23 asylum application”; she failed to explain at her hearing

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1 how Chinese authorities discovered her Falun Gong 2 activities in the United States; although she claimed to 3 have begun practicing Falun Gong in May 2010 as a result of 4 the denial of her family planning claim, that claim was 5 denied in August 2010; she provided confusing testimony 6 about her introduction to Falun Gong; she implausibly 7 asserted that Chinese authorities learned of her practice 8 after a single protest; and she was vague on cross 9 examination. The IJ concluded that the letter from the 10 village committee was insufficient to rehabilitate Wang’s 11 credibility, noting that it was not authenticated and the 12 drafters were unavailable for cross examination. The BIA 13 found no error in the IJ’s adverse credibility 14 determination. 15 In this Court, Wang raises only her Falun Gong claim 16 and does not challenge the negative credibility 17 determination on her family planning claim. However, she 18 argues that the agency’s credibility findings as to her 19 Falun Gong claim are not supported by the record, that the 20 agency should not have relied at all on the prior 21 credibility determination, and that the village notice was 22 sufficiently authenticated given the letter her counsel 23 obtained from the village committee.

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1 The governing REAL ID Act credibility standard provides 2 that the agency must “[c]onsider[] the totality of the 3 circumstances,” and may base a credibility finding on an 4 applicant’s “demeanor, candor, or responsiveness,” the 5 plausibility of her account, inconsistencies in her or her 6 witness’s statements, “without regard to whether” they go 7 “to the heart of the applicant’s claim, or any other 8 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We 9 defer . . . to an IJ’s credibility determination 10 unless . . . it is plain that no reasonable fact-finder 11 could make such an adverse credibility ruling.” Xiu Xia 12 Lin, 534 F.3d at 167. We conclude that substantial evidence 13 supports the adverse credibility determination. 14 Contrary to Wang’s position, it was proper for the 15 agency to consider the prior adverse credibility 16 determination because the agency is required to consider 17 the “totality of the circumstances.” 8 U.S.C. 18 § 1158(b)(1)(B)(iii). Moreover, the agency reasonably 19 concluded that the adverse credibility finding on her 20 family planning claim undermined her credibility as a 21 whole. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 22 2007) (“[A] single false document or a single instance of 23 false testimony may (if attributable to the petitioner)

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1 infect the balance of the alien’s uncorroborated or 2 unauthenticated evidence.”). 3 Moreover, as the IJ explicitly noted, the timing of 4 Wang’s Falun Gong claim was suspicious because she 5 commenced her Falun Gong practice in the United States, and 6 did so shortly after the hearing on the merits of her 7 family planning claim. In the analogous context of asylum 8 claims based on political activities undertaken solely in 9 the United States, we have cautioned that such claims are 10 easily manufactured and must be closely scrutinized. See 11 Y.C. v. Holder, 741 F.3d 324, 338 (2d Cir. 2013). 12 The IJ’s reliance on the suspicious chronology finds 13 further support in the record. First, Wang testified that 14 she began practicing Falun Gong after she lost her case, 15 but gave the date as May 2010, which was before the first 16 IJ denied her family planning claim. See Xiu Xia Lin, 534 17 F.3d at 167 (holding that “an IJ may rely on any 18 inconsistency or omission in making an adverse credibility 19 determination as long as the ‘totality of the 20 circumstances’ establishes that an asylum applicant is not 21 credible”). Second, the IJ found Wang’s testimony confusing 22 as to how her practice commenced: she testified that her 23 “best friend saw [her]” and “encouraged [her] to practice

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1 Falun Gong”, while on cross-examination, Wang testified 2 that she lost contact with the friend, who simply told her 3 to look Falun Gong up on the computer. She was also 4 inconsistent as to where the introduction happened, first 5 stating that her friend told her about Falun Gong while 6 they were in Arizona, but then testifying that she did not 7 start practicing until they ran into one another on the 8 street in New York. Because the government’s counsel asked 9 multiple questions in an attempt to clarify this issue, the 10 IJ did not err in relying on the confusing nature of the 11 testimony as a basis for the adverse credibility 12 determination. Cf. Ming Shi Xue v. Bd. of Immigration 13 Appeals, 439 F.3d 111, 122-23 (2d Cir. 2006) (explaining 14 that IJ should elicit explanation or detail before relying 15 on non-obvious inconsistencies or vague or spare 16 testimony). 17 Nor, given the suspicious timing, did the agency err in 18 questioning the plausibility of Wang’s allegation that the 19 Chinese authorities discovered her involvement with Falun 20 Gong in New York after she had attended a single protest. 21 See Siewe, 480 F.3d at 168-69 (“The speculation that 22 inheres in inference is not ‘bald’ if the inference is made 23 available to the factfinder by record facts, or even a

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1 single fact, viewed in the light of common sense and 2 ordinary experience.”). Although Wang alleged that she saw 3 people from her village in China at the protest, the agency 4 did not err in relying on her failure to provide further 5 details during her testimony, particularly given that she 6 did not identify those individuals and that this point was 7 central to her fear of persecution. See Honghseng Leng v. 8 Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (holding that 9 where asylum claim relies solely on activities in the 10 United States, “an alien must make some showing that 11 authorities in h[er] country of nationality are either 12 aware of h[er] activities or likely to become aware of 13 h[er] activities.”). 14 Finally, having questioned Wang’s credibility, the 15 agency reasonably concluded that her documentary evidence 16 did not rehabilitate her credibility. See Biao Yang v. 17 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s 18 failure to corroborate his or her testimony may bear on 19 credibility, because the absence of corroboration in 20 general makes an applicant unable to rehabilitate testimony 21 that has already been called into question.”). Wang 22 submitted a notice from the Chinese government that her 23 mother-in-law purportedly received when authorities came to

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1 her home in October 2010. The IJ and the BIA both declined 2 to credit the notice, concluding, without further 3 explanation, that the notice and letter were not 4 authenticated. Although further explanation would have been 5 helpful, “we do not demand that the BIA expressly parse or 6 refute on the record each individual argument or piece of 7 evidence offered by the petitioner.” Jian Hui Shao v. 8 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (internal 9 quotation marks omitted). We defer to the agency’s 10 conclusion that the notice was insufficient to rehabilitate 11 Wang’s credibility. See Y.C., 741 F.3d at 332 (“We defer to 12 the agency’s determination of the weight afforded to an 13 alien’s documentary evidence.”). Although Wang’s counsel 14 documented his mailing of the notice to the committee and 15 his receipt of the letter from the village committee, the 16 agency did not have to give dispositive weight to the 17 committee’s confirmatory response: because the notice was 18 redacted, the committee’s letter could not establish more 19 than the authenticity of the form, not that such a form was 20 sent to Wang’s mother-in-law. 21 Given the adverse credibility ruling on the family 22 planning claim, which Wang does not challenge, as well as 23 the suspicious timing of her Falun Gong claim combined with

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1 her vague, inconsistent, and confusing testimony about how 2 she commenced that practice, substantial evidence supports 3 the agency’s conclusion that Wang’s Falun Gong claim was 4 not credible. The adverse credibility determination is 5 dispositive of asylum, withholding of removal, and CAT 6 relief because all three claims are based on the same 7 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156- 8 57 (2d Cir. 2006). 9 For the foregoing reasons, the petition for review is 10 DENIED. As we have completed our review, any stay of 11 removal that the Court previously granted in this petition 12 is VACATED, and any pending motion for a stay of removal in 13 this petition is DISMISSED as moot. Any pending request for 14 oral argument in this petition is DENIED in accordance with 15 Federal Rule of Appellate Procedure 34(a)(2), and Second 16 Circuit Local Rule 34.1(b).

17 18 FOR THE COURT: 19 Catherine O’Hagan Wolfe 20 Clerk of Court