17-3898 Yan v. Barr BIA
Poczter, IJ
A208 922 045
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 29th day of October, two thousand nineteen. 5 6 PRESENT: 7 JON O. NEWMAN, 8 PETER W. HALL, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 YOULIN YAN, 14 Petitioner, 15 16 v. 17-3898 17 NAC 18 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: John S. Yong, New York, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Linda S. 28 Wernery, Assistant Director; 29 Steven K. Uejio, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 32 Justice, 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 Youlin Yan, a native and citizen of the 6 People’s Republic of China, seeks review of a November 15, 7 2017, decision of the BIA affirming a March 13, 2017, decision 8 of an Immigration Judge (“IJ”) denying his application for 9 asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”). In re Youlin Yan, No. 11 A208 922 045 (B.I.A. Nov. 15, 2017), aff’g No. A208 922 045 12 (Immig. Ct. N.Y. City Mar. 13, 2017). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 in this case. 15 Under the circumstances of this case, we have reviewed 16 both the IJ’s and the BIA’s opinions “for the sake of 17 completeness.” Wangchuck v. Dep’t of Homeland Security, 448 18 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 19 review are well established. See 8 U.S.C. § 1252(b)(4)(B); 20 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). 21 Adverse Credibility Determination 22 “Considering the totality of the circumstances, and all 23 relevant factors, a trier of fact may base a credibility
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1 determination on . . . the consistency between the applicant’s 2 or witness’s written and oral statements . . . [and] the 3 internal consistency of each such statement . . . without 4 regard to whether an inconsistency, inaccuracy, or falsehood 5 goes to the heart of the applicant’s claim.” 8 U.S.C. 6 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 7 163-64 (2d Cir. 2008). Substantial evidence supports the 8 agency’s determination that Yan was not credible as to his 9 claim that police sought to arrest him after they raided his 10 unregistered church in China. 11 The agency reasonably relied on the fact that Yan omitted 12 from his asylum application and his father omitted from his 13 statement Yan’s assertion that police had searched for him an 14 additional ten times at his family’s home following their 15 initial visit after the raid on his church. See 8 U.S.C. 16 § 1158(b)(1)(B)(iii); see also Hong Fei Gao, 891 F.3d at 78- 17 82. Although asylum applicants are not required to list 18 every incident or provide every detail in their asylum 19 applications, Hong Fei Gao, 891 F.3d at 78, Yan attached a 20 detailed, four-page written statement, which included 21 information less pertinent than the ten police searches. 22 Further, the fact that police visited his parents’ house more 23 than once and as many as ten times was information “that a
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1 credible petitioner would reasonably have been expected to 2 disclose under the relevant circumstances,” Hong Fei Gao, 891 3 F.3d at 79, particularly given that Yan did not suffer past 4 persecution and his asylum claim was therefore based entirely 5 on whether police in China remained interested in him and 6 would seek to harm him in the future, see 8 C.F.R. 7 § 1208.13(b). Similarly, although his father’s affidavit 8 discusses at length reasons Yan joined the church and 9 discusses police attempting to arrest Yan on the day of the 10 raid, it does not mention that police continued to look for 11 Yan after that day. See Hong Fei Gao, 891 F.3d at 78 (“[T]he 12 probative value of a witness’s . . . silence on particular 13 facts depends on whether those facts are ones the witness 14 would reasonably have been expected to disclose.”). 15 The IJ also reasonably relied, in part, on Yan’s 16 misrepresentation on his asylum application of his military 17 service and residences in China. An asylum applicant’s 18 presentation of “a single false document or a single instance 19 of false testimony may (if attributable to the petitioner) 20 infect the balance of the alien’s uncorroborated or 21 unauthenticated evidence.” Siewe v. Gonzales, 480 F.3d 160, 22 170 (2d Cir. 2007); see also Borovikova v. U.S. Dep’t of 23 Justice, 435 F.3d 151, 157-58 (2d Cir. 2006). Although there
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1 are limitations to the “maxim falsus in uno, falsus in omnibus 2 (false in one thing, false in everything),” including when 3 the false evidence or statements were necessary to escape 4 persecution, Siewe, 480 F.3d at 170 (internal quotation marks 5 omitted), Yan was not fleeing persecution when he made false 6 statements in his asylum application and swore to the truth 7 of its contents in March 2017, one year after he entered the 8 United States. Further, the IJ acknowledged that, in a 9 section titled “Notes” in the written statement appended to 10 the application, Yan admitted that he had lied about his 11 military service when speaking to immigration officials 12 during a credible fear interview shortly after he entered the 13 United States. However, the IJ was not compelled to conclude 14 that Yan’s admission rendered him credible as he continued to 15 misrepresent his military service and residences in the 16 application itself and conceded that he did so in part to 17 avoid being removed. See Majidi v. Gonzales, 430 F.3d 77, 18 80 (2d Cir. 2005) (“A petitioner must do more than offer a 19 plausible explanation for his inconsistent statements to 20 secure relief; he must demonstrate that a reasonable fact- 21 finder would be compelled to credit his testimony.” (internal 22 quotations omitted)). 23 Having questioned Yan’s credibility, the agency
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1 reasonably relied further on his failure to rehabilitate his 2 testimony with reliable corroborating evidence. “An 3 applicant’s failure to corroborate his or her testimony may 4 bear on credibility, because the absence of corroboration in 5 general makes an applicant unable to rehabilitate testimony 6 that has already been called into question.” Biao Yang v. 7 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The IJ reasonably 8 noted that statements from Yan’s father, church friend, and 9 church in China did not rehabilitate Yan’s claim because they 10 did not mention that police continued to look for him. The 11 IJ also reasonably noted that Yan failed to submit a sworn 12 statement from his friend Mr. Wang, who purportedly 13 introduced Yan to Christianity and with whom Yan remained in 14 contact until two months before his hearing. 15 Although the IJ may have erred in relying on a minor date 16 discrepancy in Yan’s father’s statement that Yan immediately 17 identified and in noting that Yan failed to submit a written 18 statement from his friend Mr. Zhang, the omissions, false 19 statements, and lack of corroboration discussed above 20 constitute substantial evidence supporting the adverse 21 credibility determination. See 8 U.S.C. 22 § 1158(b)(1)(B)(iii). That determination is dispositive of 23 asylum, withholding of removal, and CAT relief insofar as
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1 those claims were based on Yan’s fear of persecution on 2 account of the police raid on the church gathering he attended 3 in 2016. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 4 2006). 5 Burden of Proof 6 Because Yan was not credible as to his claim that Chinese 7 police were aware of and wanted to arrest him for his past 8 religious activities, he had to establish a well-founded fear 9 persecution based on his current religious practice by 10 showing a reasonable possibility that he would be singled out 11 for persecution or that there was a pattern or practice of 12 persecution of similarly situated Christians. See 8 C.F.R. 13 § 1208.13(b)(2)(iii). Yan also was required to “make some 14 showing that authorities in his country of nationality are 15 either aware of his activities or likely to become aware of 16 his activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 17 143 (2d Cir. 2008). 18 The agency did not err in finding that Yan failed to 19 establish a well-founded fear of persecution by showing 20 either that Chinese officials are likely to become aware of 21 his religious practice and single him out for persecution or 22 that there was a pattern or practice of persecution of 23 similarly situated Christians. The country conditions
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1 evidence provides that tens of millions of Christians 2 practice in unregistered churches in China and that in some 3 areas they do so without interference. Yan failed to provide 4 evidence of any religious persecution in his home province 5 even though the country conditions evidence mentioned other 6 areas of China with specificity. Cf. Jian Hui Shao v. 7 Mukasey, 546 F.3d 138, 142, 149, 169 (2d Cir. 2008) (finding 8 no error in the BIA’s requirement that an applicant 9 demonstrate that officials in his or her local area enforce 10 a government policy in a manner that would give rise to a 11 well-founded fear of persecution when the country conditions 12 evidence demonstrates local variations in the enforcement of 13 that policy). 14 Given the large number of Christians practicing in 15 unregistered churches and the fact that the restrictions on 16 their activities varied by region, the agency did not err in 17 determining that Yan failed to demonstrate that officials are 18 likely to become aware of his religious practice or that there 19 was systemic or pervasive persecution of similarly situated 20 Christians sufficient to demonstrate a pattern and practice 21 of persecution. See 8 C.F.R. § 1208.13(b)(2)(iii); see also 22 Hongsheng Leng, 528 F.3d at 143; Santoso v. Holder, 580 F.3d 23 110, 112 & n.1 (2d Cir. 2009); In re A-M-, 23 I. & N. Dec.
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1 737, 741 (BIA 2005). Accordingly, because the agency 2 reasonably found that Yan failed to demonstrate a well- 3 founded fear of persecution on account of his continued 4 religious practice, it did not err in denying asylum, 5 withholding of removal, and CAT relief to that extent. See 6 Paul, 444 F.3d at 156-57. 7 For the foregoing reasons, the petition for review is 8 DENIED. As we have completed our review, the pending motion 9 for a stay of removal in this petition is DISMISSED as moot. 10 See Dkt. No. 10.
11 FOR THE COURT: 12 Catherine O’Hagan Wolfe 13 Clerk of Court