Yang v. Barr

Opinion

17-1268 Yang v. Barr BIA

Vomacka, IJ

A098 646 344

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 10th day of April, two thousand nineteen. 5 6 PRESENT: 7 GERARD E. LYNCH, 8 CHRISTOPHER F. DRONEY, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 CHUANDENG YANG, 14 Petitioner, 15 16 v. 17-1268 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Doen Zheng, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Terri J. 27 Scadron, Assistant Director; 28 Margot L. Carter, Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of 31 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 Chuandeng Yang, a native and citizen of the 6 People’s Republic of China, seeks review of a March 30, 2017, 7 decision of the BIA affirming a July 11, 2016, decision of an 8 Immigration Judge (“IJ”) denying Yang’s application for 9 asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”). In re Chuandeng Yang, 11 No. A 098 646 344 (B.I.A. Mar. 30, 2017), aff’g No. A 098 646 12 344 (Immig. Ct. N.Y. City July 11, 2016). We assume the 13 parties’ familiarity with the underlying facts and procedural 14 history in this case. 15 Because the BIA affirmed the IJ’s adverse credibility 16 ruling, we consider both the IJ’s and the BIA’s decisions on 17 credibility “for the sake of completeness.” Wangchuck v. 18 Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). 19 The applicable standards of review are well established. See 20 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 21 67, 76 (2d Cir. 2018) (reviewing adverse credibility

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1 determination under a substantial evidence standard). 2 “Considering the totality of the circumstances, and all 3 relevant factors, a trier of fact may base a credibility 4 determination on . . . the inherent plausibility of the 5 applicant’s or witness’s account, the consistency between the 6 applicant’s or witness’s written and oral statements . . . , 7 the consistency of such statements with other evidence of 8 record . . . , or any other relevant factor.” 8 U.S.C. 9 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility 10 determination unless . . . it is plain that no reasonable 11 fact-finder could make such an adverse credibility ruling.” 12 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). 13 Substantial evidence supports the agency’s adverse 14 credibility determination. 15 The agency did not err in finding that the document that 16 Yang brought with him to the asylum interview — which included 17 instructions and a crib sheet regarding how to answer 18 questions about Christianity in an asylum interview — 19 undermined his credibility. “It is well settled that, in 20 assessing the credibility of an asylum applicant’s testimony, 21 an IJ is entitled to consider whether the applicant’s story

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1 is inherently implausible.” Wensheng Yan v. Mukasey, 509 2 F.3d 63, 66 (2d Cir. 2007). Substantial evidence supports 3 an implausibility finding if “the reasons for [the IJ’s] 4 incredulity are evident.” Id. at 67. While “bald” 5 speculation is an impermissible basis, “[t]he speculation 6 that inheres in inference is not ‘bald’ if the inference is 7 made available to the factfinder by record facts, or even a 8 single fact, viewed in the light of common sense and ordinary 9 experience.” Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d 10 Cir. 2007). The agency did not err in finding implausible 11 Yang’s claim that he carried the document with him to 12 evangelize because several parts of the document were 13 relevant only to an asylum claim and not to teaching others 14 about Christianity. See Wensheng Yan, 509 F.3d at 66-67. 15 Additionally, the agency reasonably relied on Yang having 16 previously filed a fraudulent visa petition in finding him 17 not credible. See 8 U.S.C. § 1158(b)(1)(B)(iii) (requiring 18 an IJ to consider “the totality of the circumstances”); Xiu 19 Xia Lin, 534 F.3d at 165 (same); Siewe, 480 F.3d at 170 (“[A] 20 single false document or a single instance of false testimony 21 may (if attributable to the petitioner) infect the balance of

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1 the alien’s uncorroborated or unauthenticated evidence.”). 2 Although Yang testified that he was misled by an attorney, we 3 defer to the IJ because the record supports the IJ’s inference 4 that Yang knew of the fraud given that Yang signed the 5 petition and some of the supporting fraudulent documents were 6 in Chinese. See Siewe, 480 F.3d at 167-68, 170. 7 Finally, Yang’s corroborating evidence was insufficient 8 to rehabilitate his credibility. See Biao Yang v. Gonzales, 9 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to 10 corroborate his . . . testimony may bear on credibility, 11 because the absence of corroboration in general makes an 12 applicant unable to rehabilitate testimony that has already 13 been called into question.”). The agency did not err in 14 giving diminished weight to a letter from Yang’s mother. See 15 Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring 16 to agency’s decision to give little weight to letter from 17 applicant’s spouse in China); In re H-L-H- & Z-Y-Z-, 25 I. & 18 N. Dec. 209, 215 (BIA 2010) (giving diminished weight to 19 letters from relatives because they were from interested 20 witnesses not subject to cross-examination), rev’d on other 21 grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir.

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1 2012). Additionally, two letters from the Fellowship Bible 2 Institute were inconsistent regarding when Yang started 3 studying there. Although Yang argues that he corroborated 4 his claim with his baptism certificate and photos of his 5 religious activities, the IJ did not err in determining that 6 there was limited evidence regarding Yang’s church 7 attendance, particularly as Yang did not have witness 8 testimony regarding his church activities. 9 Given Yang’s prior attempt to gain an immigration 10 benefit by fraud, the evidence that his Christianity claim 11 was rehearsed rather than based on actual experience, and 12 his lack of reliable corroboration to rehabilitate his 13 credibility, the “totality of the circumstances” supports 14 the adverse credibility determination. See 8 U.S.C. 15 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. 16 Because Yang’s claims were all based on the same factual 17 predicate, the adverse credibility finding is dispositive 18 of asylum, withholding of removal, and CAT relief. See 19 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

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1 For the foregoing reasons, the petition for review is 2 DENIED.

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5 Clerk of Court