Yan Ping Lu v. Gonzales

215 F. App'x 59
Court of Appeals for the Second Circuit·Decided January 30, 2007·No. No. 05-5227-ag·Published

Opinion

SUMMARY ORDER

Yan Ping Lu petitions for review of the September 2005 order of the BIA affirming the decision of Immigration Judge (“IJ”) George T. Chew, denying her application for asylum, withholding of removal and relief under the Convention against [61] Torture (“CAT”). In re Yan Ping Lu, No. A 78 727 651 (B.I.A. Sept. 7, 2005), aff'g No. A 78 727 651 (Immig. Ct. N.Y. City May 14, 2004). Familiarity with the facts and the procedural history of the case is presumed.

Where, as here, the BIA affirms the IJ’s decision without opinion, this Court reviews the IJ’s decision directly as the final agency determination. Ming Xia Chen v. B.I.A, 435 F.3d 141, 144 (2d Cir.2006). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. I.N.S., 386 F.3d 66, 73 & n. 7 (2d Cir.2004). Nevertheless, “the fact that the [agency] has relied primarily on credibility grounds in dismissing an asylum application cannot insulate the decision from review.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). An adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus to the finding.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted).

The BIA has found that where an asylum claimant has submitted false documents in support of her claim in an asylum hearing, that act “indicates [her] lack of credibility” with respect to the factual assertion that was intended to be proven by the false document and “creates serious doubts regarding [her] overall credibility” in the absence of any explanation for the presentation of the documents. In re O-D-, 21 I. & N. Dec. 1079, 1081-83 (BIA 1998). Our sister circuits, citing O-D-have agreed that the knowing submission of false documents in an immigration hearing can support an adverse credibility determination. Selami v. Gonzales, 423 F.3d 621, 625-26 (6th Cir.2005); Yongo v. INS, 355 F.3d 27, 33-34 (1st Cir.2004); see also Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 911 (9th Cir.2004); Kourski v. Ashcroft, 355 F.3d 1038, 1038-39 (7th Cir.2004). Of course, an IJ’s conclusion that a petitioner’s documents were fraudulent must be based on more than speculation and conjecture. Rui Ying Lin v. Gonzales, 445 F.3d 127, 134 (2d Cir.2006).

Lu filed two asylum applications, both of which the IJ found to be “totally fabricated.” Lu admits that the first asylum application and the documentation submitted therewith was fabricated, but argues (1) that because she voluntarily repudiated that application and then submitted a new application which she asserts to be true, the IJ erred in basing his adverse credibility determination, in part, on her original filing, and (2) that the IJ’s finding with respect to her second account of persecution is not supported by specific and cogent reasons, as required by Secaida-Rosales. See Secaida-Rosales, 331 F.3d at 307.

In light of the BIA’s reasoned conclusion that the knowing filing of a false asylum application casts a serious shadow on an applicant’s overall credibility, we cannot agree that the IJ was required to overlook the falsity of Lu’s original filing in assessing her credibility. Moreover, given the IJ’s amply supported factual finding that Lu was complicit in the manufacture of the fraudulent documentation, we believe that the IJ acted well within the bounds of his discretion in holding Lu accountable for this fraudulent act even where, as here, the attorney that assisted Lu with that original filing since [62] has been disbarred, in part because of his misconduct before the immigration courts. See In re Muto, 291 A.D.2d 188, 739 N.Y.S.2d 67, 68-69 (1st Dep’t 2002). In this regard, we also note that Lu’s reliance on the false materials submitted with her original application did not end when she filed her second application. Rather, when asked at her asylum hearing what proof she could offer that she had a son, Lu responded that she had a household registration book that noted her son’s birth— the very same registration book that she had elsewhere admitted was false.

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Yan Ping Lu v. Gonzales, 215 F. App'x 59 (2d Cir. 2007).

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Related

Yongo v. Immigration & Naturalization Service
355 F.3d 27 (First Circuit, 2004)
Ming Xia Chen v. Board of Immigration Appeals
435 F.3d 141 (Second Circuit, 2006)
Rui Ying Lin v. Alberto Gonzales, Attorney General
445 F.3d 127 (Second Circuit, 2006)
O-D
21 I. & N. Dec. 1079 (Board of Immigration Appeals, 1998)
In re Muto
291 A.D.2d 188 (Appellate Division of the Supreme Court of New York, 2002)