18-2585 Wu v. Garland BIA
Cassin, IJ
A200 929 089
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 16th day of March, two thousand twenty-one. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 REENA RAGGI, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 _____________________________________ 12 13 SAIGUAN WU, 14 Petitioner, 15 16 v. 18-2585 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: Zhiyuan Qian, Law Office of David 24 Chien, P.C., New York, NY.
1 Pursuantto Fed. R. App. P. 43(c)(2), Merrick B. Garland is automatically substituted for former U.S. Attorney General William P. Barr.
1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; John S. Hogan, 3 Assistant Director; Todd J. 4 Cochran, Trial Attorney; Katherine 5 V. Phillips, Law Clerk, Office of 6 Immigration Litigation, United 7 States Department of Justice, 8 Washington, DC. 9 10 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
11 AND DECREED that this petition for review of a decision of 12 the Board of Immigration Appeals (“BIA”) is DENIED. 13 Petitioner Saiguan Wu, a native and citizen of the 14 People’s Republic of China, seeks review of an August 1, 2018 15 decision of the BIA affirming an August 29, 2017 decision of 16 an Immigration Judge (“IJ”) denying his application for 17 asylum, withholding of removal, and relief under the 18 Convention Against Torture (“CAT”). In re Saiguan Wu, No. 19 A200 929 089 (B.I.A. Aug. 1, 2018), aff’g No. A200 929 089 20 (Immig. Ct. N.Y.C. Aug. 29, 2017). We assume the parties’ 21 familiarity with the underlying facts and procedural history. 22 Under the circumstances of this case, we have reviewed 23 the IJ’s decision as modified by the BIA, i.e., without the 24 inconsistencies that the IJ identified with respect to Wu’s 25 travel from China and which days he attended church services 26 in the United States that the BIA did not rely on. See Xue 27 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
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1 Cir. 2005). The applicable standards of review are well 2 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. 3 Sessions, 891 F.3d 67, 76 (2d Cir. 2018). 4 “Considering the totality of the circumstances, and all 5 relevant factors, a trier of fact may base a credibility 6 determination on . . . the consistency between the applicant’s 7 or witness’s written and oral statements . . . , the internal 8 consistency of each such statement, . . . and any inaccuracies 9 or falsehoods in such statements, without regard to whether 10 an inconsistency, inaccuracy, or falsehood goes to the heart 11 of the applicant’s claim, or any other relevant factor.” 12 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 13 credibility determination unless, from the totality of the 14 circumstances, it is plain that no reasonable fact-finder 15 could make such an adverse credibility ruling.” Xiu Xia Lin 16 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei 17 Gao, 891 F.3d at 76. Substantial evidence supports the 18 agency’s determination that Wu was not credible given his 19 omission of facts related to the severity of his alleged past 20 harm and his inconsistent statements about his practice of 21 Christianity in the United States.
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1 The agency reasonably relied on Wu’s omission from his 2 asylum application of the most severe details of his treatment 3 in detention. See Xiu Xia Lin, 534 F.3d at 166 n.3 (stating 4 that “[a]n inconsistency and an omission are . . . 5 functionally equivalent” for credibility purposes). In that 6 application, Wu stated that an officer slapped him during an 7 interrogation session during his detention in China. But he 8 later testified that he was beaten on his face, stomach, and 9 back. When asked why he did not detail the extent of his 10 beating and injuries in his application, Wu said that he 11 “forgot to write it down.” Admin. Rec. at 154–55. In a post- 12 hearing affidavit, he stated that he forgot to tell the 13 attorney who prepared his asylum application that he was 14 beaten on the back and stomach. 15 Although “asylum applicants are not required to list 16 every incident of persecution” in an application, Pavlova v. 17 INS, 441 F.3d 82, 90 (2d Cir. 2006), Wu’s testimony did not 18 merely provide additional detail, he testified to a 19 substantially more serious attack, see Majidi v. Gonzales, 20 430 F.3d 77, 79-80 (2d Cir. 2005) (relying on applicant’s 21 failure to mention that he was present and beaten when his 22 home was ransacked). Nor was the agency required to accept
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1 his explanations that he forgot to include the additional 2 information or forgot to provide the information to the 3 attorney. See id. at 80 (“A petitioner must do more than 4 offer a plausible explanation for his inconsistent statements 5 to secure relief; he must demonstrate that a reasonable fact- 6 finder would be compelled to credit his testimony.” (internal 7 quotation marks omitted)); see also Hong Fei Gao, 891 F.3d at 8 78–79 (“[I]n assessing the probative value of the omission of 9 certain facts, an IJ should consider whether those facts are 10 ones that a credible petitioner would reasonably have been 11 expected to disclose under the relevant circumstances.”). 12 While he now argues that it was “inevitable” that some details 13 were left out because the application “was prepared by someone 14 else” and was not written in his native language, these are 15 not the explanations he offered to the agency and are 16 inconsistent with his prior claim that he forgot to provide 17 the information. Petr’s Br. at 6. Because Wu’s detention 18 was the basis for his claim, these omissions about the extent 19 of his physical harm constitute substantial evidence for the 20 adverse credibility determination. See Xian Tuan Ye v. Dep’t 21 of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding 22 that even a single inconsistency is sufficient to support an
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1 adverse credibility determination if it is material and 2 relates to “an example of the very persecution from which” 3 the applicant seeks asylum). 4 The agency also reasonably relied on Wu’s inconsistent 5 testimony about his baptism to conclude that he was not 6 credible as to his practice of Christianity in the United 7 States. See Biao Yang v. Gonzales, 496 F.3d 268, 272–73 (2d 8 Cir. 2007) (upholding adverse credibility determination based 9 on inconsistencies regarding when petitioner was baptized 10 because his “claims of persecution are based on his practice 11 of religion”). Wu submitted certifications from his church 12 that he was baptized three weeks after he began attending 13 services, but he testified that he took classes for twelve 14 weeks before his baptism. After Wu’s testimony concluded, 15 the Government and the IJ stated that they had concerns about 16 his credibility because it was not possible to attend classes 17 for twelve weeks in a three-week period. When Wu tried to 18 interject, the IJ advised him to consult with his attorney. 19 Although no explanation was provided at the hearing, Wu later 20 submitted both an affidavit stating that he was excused from 21 the classes because he passed an exam, and a letter from his 22 church to confirm that he was baptized after passing an exam.
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1 The IJ was not required to accept Wu’s post-hearing 2 explanation as it conflicted with his unequivocal testimony 3 that he was required to take twelve classes. See Majidi, 430 4 F.3d at 80. While Wu argues that the IJ did not give him an 5 opportunity to explain the inconsistency, an IJ is not 6 required to solicit explanations for inconsistencies that are 7 “obvious and substantial.” Ming Shi Xue v. BIA, 439 F.3d 8 111, 120 (2d Cir. 2006). 9 Because Wu was not credible as to either his past harm 10 or his practice of Christianity, the adverse credibility 11 determination is dispositive of asylum, withholding of 12 removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 13 156–57 (2d Cir. 2006). Accordingly, we do not separately 14 address Wu’s argument that there is a pattern or practice of 15 persecution of Christians in China. 16 For the foregoing reasons, the petition for review is 17 DENIED.
18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court