19-747 Wu v. Garland BIA Sichel, IJ A206 059 529 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 9th day of March, two thousand twenty-two. 5 6 PRESENT: 10 Circuit Judges. 11 _____________________________________ 12 14 Petitioner, 15 16 v. 19-747 17 NAC 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: Adedayo Idowu, Esq., New York, 24 NY. 25
1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 2 General; Jessica E. Burns, Senior 3 Litigation Counsel; John B. Holt 4 Trial Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DISMISSED in part and DENIED in part.
12 Petitioner Liang Wu, a native and citizen of the People’s
13 Republic of China, seeks review of a February 28, 2019,
14 decision of the BIA affirming a December 4, 2017, decision of
15 an Immigration Judge (“IJ”) denying his application for
16 asylum, withholding of removal, and relief under the
17 Convention Against Torture (“CAT”). In re Liang Wu, No. A
18 206 059 529 (B.I.A. Feb. 28, 2019), aff’g No. A 206 059 529
19 (Immig. Ct. N.Y. City Dec. 4, 2017). We assume the parties’
20 familiarity with the underlying facts and procedural history.
21 We have reviewed both the BIA’s and the IJ’s decisions
22 “for the sake of completeness.” Wangchuck v. Dep’t of
23 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We lack
24 jurisdiction to review the agency’s denial of Wu’s asylum
25 application as time barred on the ground that Wu failed to
26 credibly establish that he applied for asylum within one year 2 1 of his entry. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Xiu
2 Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008)
3 (categorizing adverse credibility determinations as factual
4 findings). Accordingly, we review the adverse credibility
5 determination in the context of the agency’s denial of
6 withholding of removal and CAT relief and, as discussed below,
7 conclude that substantial evidence supports that
8 determination. See Hong Fei Gao v. Sessions, 891 F.3d 67,
9 76 (2d Cir. 2018) (reviewing adverse credibility
10 determination for substantial evidence).
11 “Considering the totality of the circumstances, and all
12 relevant factors, a trier of fact may base a credibility
13 determination on the demeanor, candor, or responsiveness of
14 the applicant . . . , the inherent plausibility of the
15 applicant’s . . . account, the consistency between the
16 applicant’s or witness’s written and oral statements . . . ,
17 the internal consistency of each such statement, the
18 consistency of such statements with other evidence of record
19 . . . , and any inaccuracies or falsehoods in such statements,
20 without regard to whether an inconsistency, inaccuracy, or
21 falsehood goes to the heart of the applicant’s claim, or any
22 other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
3 1 defer . . . to an IJ’s adverse credibility determination
2 unless, from the totality of the circumstances, it is plain
3 that no reasonable fact-finder could make such an adverse
4 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167; accord
5 Hong Fei Gao, 891 F.3d at 76. Wu alleged past persecution
6 as a Christian and that he continued to practice Christianity
7 in the United States. Substantial evidence supports the
8 agency’s adverse credibility determination.
9 The IJ reasonably relied on Wu’s demeanor. See 8 U.S.C.
10 § 1158(b)(1)(B)(iii). We generally defer to an IJ’s
11 conclusion that an applicant’s testimony was evasive or not
12 responsive. See Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d
13 Cir. 2005) (explaining that the “fact-finder who assesses
14 testimony together with witness demeanor is in the best
15 position to discern . . . whether a witness who hesitated in
16 a response was nevertheless attempting truthfully to recount
17 what he recalled of key events”); Jin Chen v. U.S. Dep't of
18 Justice, 426 F.3d 104, 113 (2d Cir. 2005) (giving “particular
19 deference to credibility determinations that are based on the
20 adjudicator’s observation of the applicant’s demeanor”).
21 Contrary to Wu’s argument, the IJ provided specific reasons
22 for the demeanor finding, even pointing to an example where
4 1 Wu avoided a question about the name of the church he
2 allegedly attended in Colorado. Moreover, record
3 inconsistencies add support to the demeanor finding and the
4 adverse credibility determination as a whole. See Li Hua Lin
5 v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006)
6 (“We can be still more confident in our review of observations
7 about an applicant’s demeanor where . . . they are supported
8 by specific examples of inconsistent testimony.”).
9 The IJ reasonably relied on Wu’s inconsistent statements
10 about where he lived and attended church while his case was
11 pending. Although he never filed a change of address from
12 Brooklyn, New York, Wu admitted to living primarily in
13 Colorado between 2014 and 2016 and not returning to New York
14 until shortly before his hearing. He gave inconsistent
15 reasons for his move to Colorado and inconsistent timelines
16 for that move. Wu’s argument that these inconsistencies are
17 not material is misplaced. First, an IJ “may rely
18 on any inconsistency . . . in making an adverse credibility
19 determination as long as the ‘totality of the circumstances’
20 establishes that an asylum applicant is not credible.” Xiu
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19-747 Wu v. Garland BIA Sichel, IJ A206 059 529 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 9th day of March, two thousand twenty-two. 5 6 PRESENT: 10 Circuit Judges. 11 _____________________________________ 12 14 Petitioner, 15 16 v. 19-747 17 NAC 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: Adedayo Idowu, Esq., New York, 24 NY. 25
1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 2 General; Jessica E. Burns, Senior 3 Litigation Counsel; John B. Holt 4 Trial Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DISMISSED in part and DENIED in part.
12 Petitioner Liang Wu, a native and citizen of the People’s
13 Republic of China, seeks review of a February 28, 2019,
14 decision of the BIA affirming a December 4, 2017, decision of
15 an Immigration Judge (“IJ”) denying his application for
16 asylum, withholding of removal, and relief under the
17 Convention Against Torture (“CAT”). In re Liang Wu, No. A
18 206 059 529 (B.I.A. Feb. 28, 2019), aff’g No. A 206 059 529
19 (Immig. Ct. N.Y. City Dec. 4, 2017). We assume the parties’
20 familiarity with the underlying facts and procedural history.
21 We have reviewed both the BIA’s and the IJ’s decisions
22 “for the sake of completeness.” Wangchuck v. Dep’t of
23 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We lack
24 jurisdiction to review the agency’s denial of Wu’s asylum
25 application as time barred on the ground that Wu failed to
26 credibly establish that he applied for asylum within one year 2 1 of his entry. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Xiu
2 Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008)
3 (categorizing adverse credibility determinations as factual
4 findings). Accordingly, we review the adverse credibility
5 determination in the context of the agency’s denial of
6 withholding of removal and CAT relief and, as discussed below,
7 conclude that substantial evidence supports that
8 determination. See Hong Fei Gao v. Sessions, 891 F.3d 67,
9 76 (2d Cir. 2018) (reviewing adverse credibility
10 determination for substantial evidence).
11 “Considering the totality of the circumstances, and all
12 relevant factors, a trier of fact may base a credibility
13 determination on the demeanor, candor, or responsiveness of
14 the applicant . . . , the inherent plausibility of the
15 applicant’s . . . account, the consistency between the
16 applicant’s or witness’s written and oral statements . . . ,
17 the internal consistency of each such statement, the
18 consistency of such statements with other evidence of record
19 . . . , and any inaccuracies or falsehoods in such statements,
20 without regard to whether an inconsistency, inaccuracy, or
21 falsehood goes to the heart of the applicant’s claim, or any
22 other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
3 1 defer . . . to an IJ’s adverse credibility determination
2 unless, from the totality of the circumstances, it is plain
3 that no reasonable fact-finder could make such an adverse
4 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167; accord
5 Hong Fei Gao, 891 F.3d at 76. Wu alleged past persecution
6 as a Christian and that he continued to practice Christianity
7 in the United States. Substantial evidence supports the
8 agency’s adverse credibility determination.
9 The IJ reasonably relied on Wu’s demeanor. See 8 U.S.C.
10 § 1158(b)(1)(B)(iii). We generally defer to an IJ’s
11 conclusion that an applicant’s testimony was evasive or not
12 responsive. See Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d
13 Cir. 2005) (explaining that the “fact-finder who assesses
14 testimony together with witness demeanor is in the best
15 position to discern . . . whether a witness who hesitated in
16 a response was nevertheless attempting truthfully to recount
17 what he recalled of key events”); Jin Chen v. U.S. Dep't of
18 Justice, 426 F.3d 104, 113 (2d Cir. 2005) (giving “particular
19 deference to credibility determinations that are based on the
20 adjudicator’s observation of the applicant’s demeanor”).
21 Contrary to Wu’s argument, the IJ provided specific reasons
22 for the demeanor finding, even pointing to an example where
4 1 Wu avoided a question about the name of the church he
2 allegedly attended in Colorado. Moreover, record
3 inconsistencies add support to the demeanor finding and the
4 adverse credibility determination as a whole. See Li Hua Lin
5 v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006)
6 (“We can be still more confident in our review of observations
7 about an applicant’s demeanor where . . . they are supported
8 by specific examples of inconsistent testimony.”).
9 The IJ reasonably relied on Wu’s inconsistent statements
10 about where he lived and attended church while his case was
11 pending. Although he never filed a change of address from
12 Brooklyn, New York, Wu admitted to living primarily in
13 Colorado between 2014 and 2016 and not returning to New York
14 until shortly before his hearing. He gave inconsistent
15 reasons for his move to Colorado and inconsistent timelines
16 for that move. Wu’s argument that these inconsistencies are
17 not material is misplaced. First, an IJ “may rely
18 on any inconsistency . . . in making an adverse credibility
19 determination as long as the ‘totality of the circumstances’
20 establishes that an asylum applicant is not credible.” Xiu
21 Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C.
22 § 1158(b)(1)(B)(iii)). Second, inconsistencies in one
5 1 aspect of testimony can undermine the applicant’s credibility
2 as a whole. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d
3 Cir. 2007) (“[A] single false document or a single instance
4 of false testimony may (if attributable to the petitioner)
5 infect the balance of the alien’s uncorroborated or
6 unauthenticated evidence.”). Third, the inconsistencies
7 relate to the substance of his claim because they undermined
8 his allegation that he practiced Christianity in the United
9 States. Given Wu’s testimony that he departed New York
10 sometime in 2014 and returned to New York in October 2016, he
11 could have attended church only a few times during that
12 period. He could not remember the names of the churches he
13 attended outside of New York or even an approximate date of
14 the last time he went to church in the years he lived in
15 Colorado.
16 The IJ reasonably concluded that Wu’s documentary
17 evidence did not rehabilitate his testimony. See Biao Yang
18 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s
19 failure to corroborate his or her testimony may bear on
20 credibility, because the absence of corroboration in general
21 makes an applicant unable to rehabilitate testimony that has
22 already been called into question.”). The IJ reasonably gave
6 1 little weight to letters from Wu’s father and friend in China
2 because they were written by interested parties unavailable
3 for cross-examination. See Y.C. v. Holder, 741 F.3d 324,
4 332, 334 (2d Cir. 2013) (holding that “[w]e generally defer
5 to the agency’s evaluation of the weight to be afforded an
6 applicant’s documentary evidence” and upholding agency’s
7 decision not to credit letter from applicant’s spouse); see
8 also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA
9 2010) (finding letters from friends and family insufficient
10 to support alien’s claims because the authors were interested
11 witnesses not subject to cross-examination), overruled on
12 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–
13 38 (2d Cir. 2012). The IJ also reasonably gave diminished
14 weight to an employment dismissal notice (Wu alleged he was
15 fired following his arrest for attending the underground
16 church) and a certificate from Wu’s church in China because
17 they were unsigned and unauthenticated and the church
18 certificate did not address the alleged past persecution.
19 See Y.C., 741 F.3d at 332. And the agency reasonably
20 discounted evidence of Wu’s church attendance in New York
21 because the author was not available for cross-examination
22 and the evidence was of little value given Wu’s admissions at
7 1 the hearing regarding his location.
2 In sum, the demeanor problem, inconsistent statements,
3 and lack of reliable corroboration constitute substantial
4 evidence for the adverse credibility determination. See 8
5 U.S.C. § 1158(b)(1)(B)(ii); Likai Gao v. Barr, 968 F.3d 137,
6 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might
7 preclude an alien from showing that an IJ was compelled to
8 find him credible. Multiple inconsistencies would so preclude
9 even more forcefully.”). The adverse credibility
10 determination is dispositive of withholding of removal and
11 CAT relief because both forms of relief rely on the same
12 discredited factual predicate. See Paul v. Gonzales, 444
13 F.3d 148, 156–57 (2d Cir. 2006).
14 For the foregoing reasons, the petition for review is
15 DISMISSED in part as to asylum and DENIED in remaining part.
16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court