Ye v. Garland

Opinion

20-2315 Ye v. Garland BIA

Brennan, IJ

A206 059 678

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 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 January, two thousand twenty- 5 three. 6 7 PRESENT: 8 DEBRA ANN LIVINGSTON, 9 Chief Judge, 10 JOHN M. WALKER, JR., 11 ALISON J. NATHAN, 12 Circuit Judges. 13 _____________________________________ 14 15 TIANYIN YE, 16 Petitioner, 17 18 V. 20-2315 19 NAC 20 21 MERRICK B. GARLAND, UNITED 22 STATES ATTORNEY GENERAL, 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: John Son Yong, Esq., Law Office 27 of John Yong, New York, NY.

1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Zoe J. Heller, 3 Senior Litigation Counsel; Roberta 4 O. Roberts, Trial Attorney, Office 5 of Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC. 8 9 UPON DUE CONSIDERATION of this petition for review of a

10 Board of Immigration Appeals (“BIA”) decision, it is hereby 11 ORDERED, ADJUDGED, AND DECREED that the petition for review 12 is DENIED. 13 Petitioner Tianyin Ye, a native and citizen of the 14 People’s Republic of China, seeks review of a July 6, 2020, 15 BIA decision affirming a May 3, 2018, decision of an 16 Immigration Judge (“IJ”) denying his application for asylum, 17 withholding of removal, and relief under the Convention 18 Against Torture (“CAT”). In re Tianyin Ye, No. A206-059-678 19 (B.I.A. July 6, 2020), aff’g No. A206-059-678 (Immig. Ct. 20 N.Y. City May 3, 2018). We assume the parties’ familiarity 21 with the underlying facts and procedural history. 22 Under the circumstances, we have reviewed both the IJ’s 23 and the BIA’s opinions. See Wangchuck v. Dep’t of Homeland 24 Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review the 25 agency’s adverse credibility determination for substantial 26 evidence, see Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d

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1 Cir. 2018), and “the administrative findings of fact are 2 conclusive unless any reasonable adjudicator would be 3 compelled to conclude to the contrary,” 8 U.S.C. 4 § 1252(b)(4)(B). “Considering the totality of the 5 circumstances, and all relevant factors, a trier of fact may 6 base a credibility determination on the demeanor, candor, or 7 responsiveness of the applicant or witness, . . . the 8 consistency between the applicant’s or witness’s written and 9 oral statements (whenever made and whether or not under oath, 10 and considering the circumstances under which the statements 11 were made), the internal consistency of each such statement, 12 . . . and any inaccuracies or falsehoods in such statements.” 13 Id. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 14 credibility determination unless, from the totality of the 15 circumstances, it is plain that no reasonable fact-finder 16 could make such an adverse credibility ruling.” Xiu Xia Lin 17 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei 18 Gao, 891 F.3d at 76. Substantial evidence supports the 19 agency’s determination that Ye was not credible as to his 20 claim that police detained and beat him for practicing 21 Christianity in an unregistered church in China. 22 The agency reasonably relied on the inconsistency between

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1 Ye’s asylum application and his testimony regarding whether 2 his parents or a friend introduced him to Christianity. See 3 8 U.S.C. § 1158(b)(1)(B)(iii). Ye failed to provide a 4 compelling explanation for the inconsistency, see Majidi v. 5 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 6 do more than offer a plausible explanation for his 7 inconsistent statements to secure relief; he must demonstrate 8 that a reasonable fact-finder would be compelled to credit 9 his testimony.” (internal quotation marks omitted)), and he 10 does not challenge the IJ’s finding in his brief, see Zhang 11 v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) 12 (recognizing that we generally do not address issues not 13 raised in the briefs). 14 The agency also reasonably found that the striking 15 similarities between Ye’s mother’s and his family friend’s 16 supporting affidavits impugned his credibility. See Mei Chai 17 Ye v. U.S. Dep’t of Just., 489 F.3d 517, 524 (2d Cir. 2007) 18 (“[T]his court has . . . firmly embraced the commonsensical 19 notion that striking similarities between affidavits are an 20 indication that the statements are ‘canned.’”); Singh v. 21 B.I.A., 438 F.3d 145, 148 (2d Cir. 2006) (upholding agency’s 22 reliance on “nearly identical language in the written

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1 affidavits allegedly provided by different people”). 2 Although, as Ye argues, the affidavits are not carbon copies 3 of each other, they are nonetheless strikingly similar 4 because the sentences and paragraphs in the six-paragraph 5 statements mirror each other in content with only slight 6 variations in word choice. Further, the IJ continued 7 proceedings in order for Ye to submit evidence explaining the 8 similarities, but a sample affidavit he purportedly gave his 9 mother and friend provided only generic information to 10 include and thus did not explain the similar structure and 11 content of the affidavits. See Mei Chai Ye, 489 F.3d at 526; 12 see also Majidi, 430 F.3d at 80. 13 The agency also reasonably relied on Ye’s change in 14 demeanor after the concerns with the supporting affidavits 15 were identified. See 8 U.S.C. § 1158(b)(1)(B)(iii); Gao v. 16 Barr, 968 F.3d 137, 149 (2d Cir. 2020) (according “great 17 deference” to IJ’s demeanor findings (internal quotation 18 marks omitted)). That demeanor finding is supported by the 19 record, and Ye does not challenge it in his brief. See Zhang, 20 426 F.3d at 541 n.1, 545 n.7. 21 The inconsistency, similarities between the affidavits, 22 and demeanor findings provide substantial evidence for the

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1 agency’s adverse credibility determination. See 8 U.S.C. 2 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; Mei Chai 3 Ye, 489 F.3d at 526 (concluding that submission of similar 4 affidavits “undermined [applicant’s] general credibility”). 5 The adverse credibility determination is dispositive because 6 asylum, withholding of removal, and CAT relief rest on the 7 same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 8 156–57 (2d Cir. 2006). 9 For the foregoing reasons, the petition for review is 10 DENIED. All pending motions and applications are DENIED and 11 stays VACATED.

12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court