16-2333 Wu v. Sessions BIA Van Wyke, IJ A087 516 173 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 for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 23rd day of February, two thousand eighteen. 5 6 PRESENT: 7 REENA RAGGI, 8 DENNY CHIN, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 QUI MEI WU, AKA WUI MEI WU, 14 Petitioner, 15 16 v. 16-2333 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gerald Karikari, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Briena L. 27 Stippoli, Senior Litigation 28 Counsel; Timothy Bo Stanton, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 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 is
4 DENIED.
5 Petitioner Qui Mei Wu, a native and citizen of the People’s
6 Republic of China, seeks review of a June 7, 2016, decision of
7 the BIA affirming a December 8, 2014, decision of an Immigration
8 Judge (“IJ”) denying Wu’s application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Qui Mei Wu, No. A087 516 173 (B.I.A. June 7,
11 2016), aff’g No. A087 516 173 (Immig. Ct. N.Y. City Dec. 8,
12 2014). We assume the parties’ familiarity with the underlying
13 facts and procedural history in this case.
14 Because the BIA agreed with the IJ’s credibility
15 determination and emphasized particular aspects of it, we have
16 reviewed both the BIA’s and IJ’s opinions, including the
17 portions of the IJ decision not explicitly discussed by the BIA.
18 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The
19 applicable standards of review are well established. See 8
20 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
21 513 (2d Cir. 2009).
2 1 Under the REAL ID Act of 2005, the agency may, in light of
2 “the totality of the circumstances,” base an adverse
3 credibility determination on an asylum applicant’s
4 responsiveness, inconsistencies in her statements, “without
5 regard to whether” those inconsistencies go “to the heart of
6 the applicant’s claim,” and the “inherent plausibility” of her
7 account, among other factors. 8 U.S.C. § 1158(b)(1)(B)(iii);
8 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008). In
9 conducting “substantial evidence” review, we “defer . . . to
10 an IJ’s credibility determination unless, from the totality of
11 the circumstances, it is plain that no reasonable fact-finder
12 could make such an adverse credibility ruling.” Xiu Xia Lin,
13 534 F.3d at 167.
14 The adverse credibility determination satisfies our
15 review. The agency identified two areas of Wu’s testimony that
16 were vague, lacked detail, and were of questionable
17 plausibility. See 8 U.S.C. § 1158(b)(1)(B)(iii); Wensheng Yan
18 v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007) (“[I]n assessing the
19 credibility of an asylum applicant’s testimony, an IJ is
20 entitled to consider whether the applicant’s story is
21 inherently implausible.”). The IJ fulfilled his obligation
22 “to solicit more detail” by asking numerous follow-up
3 1 questions. Shunfu Li v. Mukasey, 529 F.3d 141, 147 (2d Cir.
2 2008) (“[A] finding of testimonial vagueness cannot, without
3 more, support an adverse credibility determination unless
4 government counsel or the IJ first attempts to solicit more
5 detail from the alien.”).
6 First, aside from identifying her aunt, Wu was vague about
7 her fellow churchgoers. Wu testified that she told some of her
8 friends about the church, and later saw them there, but denied
9 having brought them. She could not explain which of the 50 or
10 60 other church members recruited her friends, and further
11 suggested that she never thought to ask her friends how they
12 came to attend. In addition to deeming this testimony vague,
13 the IJ was justifiably incredulous. If Wu had told her friends
14 about the church and later ran into them there, they would have
15 discussed the topic. Siewe v. Gonzales, 480 F.3d 160, 168-69
16 (2d Cir. 2007).
17 Wu’s testimony about her family members was similarly
18 vague. She identified four relatives who initially attended
19 the church, but could not remember the names of three or four
20 other family members who joined later and were arrested during
21 the raid. When asked, Wu could not say which--or even how
22 many--of her relatives were arrested. Cf. Jin Chen v. U.S.
4 1 Dep’t of Justice, 426 F.3d 104, 114 (2d Cir. 2005) (in pre-REAL
2 ID case, remanding where the IJ and Government “failed to create
3 a record that could support” the IJ’s vagueness-based
4 credibility finding). The IJ reasonably found it implausible
5 that Wu did not ask her mother for this information. Siewe,
6 480 F.3d at 168-69. Moreover, the letter submitted by Wu’s
7 mother said nothing about their relatives being arrested,
8 casting further doubt on Wu’s account. Xiu Xia Lin, 534 F.3d
9 166 n.3 (an omission in a document can ground an adverse
10 credibility determination).
11 Wu argues that the IJ should not have focused on whether
12 she knew that the underground church was illegal. Although the
13 IJ observed that Wu seemed to be differing with the definition
14 of “illegal,” the IJ’s main point was that Wu’s testimony made
15 little sense: how could she not know the church was illegal after
16 her aunt explained that it moved each week to avoid police
17 detection? The IJ asked a further question: if church leaders
18 worried about detection, why would they not warn new members
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16-2333 Wu v. Sessions BIA Van Wyke, IJ A087 516 173 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 for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 23rd day of February, two thousand eighteen. 5 6 PRESENT: 7 REENA RAGGI, 8 DENNY CHIN, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 QUI MEI WU, AKA WUI MEI WU, 14 Petitioner, 15 16 v. 16-2333 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gerald Karikari, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Briena L. 27 Stippoli, Senior Litigation 28 Counsel; Timothy Bo Stanton, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 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 is
4 DENIED.
5 Petitioner Qui Mei Wu, a native and citizen of the People’s
6 Republic of China, seeks review of a June 7, 2016, decision of
7 the BIA affirming a December 8, 2014, decision of an Immigration
8 Judge (“IJ”) denying Wu’s application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Qui Mei Wu, No. A087 516 173 (B.I.A. June 7,
11 2016), aff’g No. A087 516 173 (Immig. Ct. N.Y. City Dec. 8,
12 2014). We assume the parties’ familiarity with the underlying
13 facts and procedural history in this case.
14 Because the BIA agreed with the IJ’s credibility
15 determination and emphasized particular aspects of it, we have
16 reviewed both the BIA’s and IJ’s opinions, including the
17 portions of the IJ decision not explicitly discussed by the BIA.
18 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The
19 applicable standards of review are well established. See 8
20 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
21 513 (2d Cir. 2009).
2 1 Under the REAL ID Act of 2005, the agency may, in light of
2 “the totality of the circumstances,” base an adverse
3 credibility determination on an asylum applicant’s
4 responsiveness, inconsistencies in her statements, “without
5 regard to whether” those inconsistencies go “to the heart of
6 the applicant’s claim,” and the “inherent plausibility” of her
7 account, among other factors. 8 U.S.C. § 1158(b)(1)(B)(iii);
8 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008). In
9 conducting “substantial evidence” review, we “defer . . . to
10 an IJ’s credibility determination unless, from the totality of
11 the circumstances, it is plain that no reasonable fact-finder
12 could make such an adverse credibility ruling.” Xiu Xia Lin,
13 534 F.3d at 167.
14 The adverse credibility determination satisfies our
15 review. The agency identified two areas of Wu’s testimony that
16 were vague, lacked detail, and were of questionable
17 plausibility. See 8 U.S.C. § 1158(b)(1)(B)(iii); Wensheng Yan
18 v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007) (“[I]n assessing the
19 credibility of an asylum applicant’s testimony, an IJ is
20 entitled to consider whether the applicant’s story is
21 inherently implausible.”). The IJ fulfilled his obligation
22 “to solicit more detail” by asking numerous follow-up
3 1 questions. Shunfu Li v. Mukasey, 529 F.3d 141, 147 (2d Cir.
2 2008) (“[A] finding of testimonial vagueness cannot, without
3 more, support an adverse credibility determination unless
4 government counsel or the IJ first attempts to solicit more
5 detail from the alien.”).
6 First, aside from identifying her aunt, Wu was vague about
7 her fellow churchgoers. Wu testified that she told some of her
8 friends about the church, and later saw them there, but denied
9 having brought them. She could not explain which of the 50 or
10 60 other church members recruited her friends, and further
11 suggested that she never thought to ask her friends how they
12 came to attend. In addition to deeming this testimony vague,
13 the IJ was justifiably incredulous. If Wu had told her friends
14 about the church and later ran into them there, they would have
15 discussed the topic. Siewe v. Gonzales, 480 F.3d 160, 168-69
16 (2d Cir. 2007).
17 Wu’s testimony about her family members was similarly
18 vague. She identified four relatives who initially attended
19 the church, but could not remember the names of three or four
20 other family members who joined later and were arrested during
21 the raid. When asked, Wu could not say which--or even how
22 many--of her relatives were arrested. Cf. Jin Chen v. U.S.
4 1 Dep’t of Justice, 426 F.3d 104, 114 (2d Cir. 2005) (in pre-REAL
2 ID case, remanding where the IJ and Government “failed to create
3 a record that could support” the IJ’s vagueness-based
4 credibility finding). The IJ reasonably found it implausible
5 that Wu did not ask her mother for this information. Siewe,
6 480 F.3d at 168-69. Moreover, the letter submitted by Wu’s
7 mother said nothing about their relatives being arrested,
8 casting further doubt on Wu’s account. Xiu Xia Lin, 534 F.3d
9 166 n.3 (an omission in a document can ground an adverse
10 credibility determination).
11 Wu argues that the IJ should not have focused on whether
12 she knew that the underground church was illegal. Although the
13 IJ observed that Wu seemed to be differing with the definition
14 of “illegal,” the IJ’s main point was that Wu’s testimony made
15 little sense: how could she not know the church was illegal after
16 her aunt explained that it moved each week to avoid police
17 detection? The IJ asked a further question: if church leaders
18 worried about detection, why would they not warn new members
19 that the church was illegal? Otherwise, new members might talk
20 about it openly. Wu submitted a church attendance certificate,
21 which featured her name, address, and photograph. That
22 document caused the IJ to ask another reasonable question: why
5 1 would an underground church maintain the photographs and
2 personal identifying information of its members? Wu
3 characterizes the IJ’s questions as speculative, but all are
4 grounded in Wu’s incompatible statements. Siewe, 480 F.3d at
5 168-69.
6 The totality of the circumstances outlined above supports
7 the adverse credibility determination. Xiu Xia Lin, 534 F.3d
8 at 164. Wu’s asylum, withholding of removal, and CAT claims
9 were all based on the same factual predicate, and so the
10 credibility determination was dispositive as to all three. See
11 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, the pending motion
14 for a stay of removal in this petition is DISMISSED as moot.
15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk