Ying Li v. BCIS

Opinion

07-0963-ag Ying Li v. BCIS

UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2007 5 6 (Argued: April 23, 2008 Decided: June 10, 2008) 7 8 Docket No. 07-0963-ag 9 10 - - - - - - - - - - - - - - - - - - - -x 11 12 YING LI, 13 14 Petitioner, 15 16 - v.- 17 18 BUREAU OF CITIZENSHIP AND IMMIGRATION 19 SERVICES, 20 21 Respondent. 22 23 - - - - - - - - - - - - - - - - - - - -x 24

25 Before: JACOBS, Chief Judge, KEARSE and KATZMANN, 26 Circuit Judges. 27 28 In this review of a decision of the Board of

29 Immigration Appeals summarily affirming an immigration 30 judge’s (“IJ”) denial of a petition for asylum, withholding 31 of removal, and protection under the Convention Against 32 Torture, we hold that the IJ’s adverse credibility 33 determination, based on implausibility, is supported by

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1 substantial evidence. While explanations are available for 2 features of petitioner’s account that were found 3 implausible, we review the entire record, not whether each 4 unusual feature of the account can be explained or 5 rationalized. See Borovikova v. U.S. Dep’t of Justice, 435

6 F.3d 151, 161 (2d Cir. 2006). T he petition is denied. 7 8 Lorance Hockert, New York, NY, 9 for Petitioner. 10 11 Susan K. Houser, Senior 12 Litigation Counsel, Office of 13 Immigration Litigation, Civil 14 Division, United States 15 Department of Justice (Peter D. 16 Keisler, Assistant Attorney 17 General, and Lisa M. Arnold, 18 Senior Litigation Counsel, on 19 the brief), Washington, DC, for 20 Respondent. 21 22 DENNIS JACOBS, Chief Judge: 23 24 Petitioner Ying Li, a native and citizen of the

25 People’s Republic of China, seeks review of a summary 26 affirmance by the Board of Immigration Appeals (“BIA”) of 27 the oral decision of an immigration judge (“IJ”), which 28 denied her application for asylum, withholding of removal, 29 and protection under the Convention Against Torture (“CAT”). 30 In re Li, Ying, No. A 95 688 247 (B.I.A. Feb. 20, 2007), 31 aff’g No. A 95 688 247 (Immig. Ct. New York City, Aug. 9,

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1 2005). Li’s asylum application is premised on her claim 2 that the Chinese government persecuted her for supporting 3 Falun Gong . The IJ determined that Li was not credible, 4 chiefly on the ground that her account is implausible, and 5 denied her applications on that basis. 6 We conclude that the IJ’s adverse credibility 7 determination is supported by substantial evidence. The IJ 8 relied on several “valid” and “cogent” reasons for rejecting 9 Li’s testimony as implausible. See Ming Xia Chen v. BIA, 10 435 F.3d 141, 145 (2d Cir. 2006). While explanations are 11 available for features of petitioner’s account that were 12 found implausible, we review the entire record, not whether 13 each unusual feature of the account can be explained or 14 rationalized. See Borovikova v. U.S. Dep’t of Justice, 435 15 F.3d 151, 161 (2d Cir. 2006). The IJ could conclude that 16 Li’s account, taken all in all, is implausible; and so we 17 cannot say that any reasonable adjudicator would be 18 compelled to conclude that she testified credibly. 19 Accordingly, t he petition is denied. 20 21 I 22 Ying Li was placed in removal proceedings in January

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1 2005 when she attempted to enter the United States without 2 valid travel documents. Li applied for asylum, withholding 3 of removal, and relief under the CAT, claiming that the 4 Chinese government persecuted her for her involvement with 5 Falun Gong. 6 Li’s account–-as set forth in her asylum application 7 and at her merits hearing–-is as follows: 8 Her uncle’s friend, a practitioner, introduced 9 her to Falun Gong. Although Li had only a “basic 10 understanding” of Falun Gong, she was “very 11 interested” in it because “it [is] a good 12 practice” and is beneficial to physical and mental 13 health. Li promoted Falun Gong “because [she] 14 believed that [Falun] Gong was not an evil cult.” 15 However, Li was too busy with her studies to learn 16 or practice Falun Gong in China. 17 After the Chinese government declared Falun 18 Gong an “evil cult,” her uncle’s friend went into 19 hiding. Li thought that the Chinese government 20 “should not suppress and persecute Falun Gong 21 followers, who were kind and innocent.” Li, a 22 student at the Fuzhou City Industrial School,

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1 would sometimes promote among her classmates 2 opposition to the government’s suppression of 3 Falun Gong. In September 2003, school officials 4 forcibly detained her for seven hours, beat her, 5 and forced her to sign a letter promising that she 6 would end her involvement with Falun Gong. 7 When her uncle’s friend visited her in August 8 2004, he encouraged Li to continue her support. 9 This individual visited Li’s family home about 10 twenty times over a four to six week period. In 11 September 2004, while Li was away, the police came 12 to her home to arrest her. They told her father 13 that someone had reported that she “colluded with 14 Falun Gong followers,” and they challenged him 15 when he denied that she was member of Falun Gong. 16 According to Li, “[g]overnment officials pursued 17 me everywhere, [and] threatened my family to 18 disclose my whereabouts.” Subsequently, Li’s 19 family arranged for her to leave China. In the 20 United States, Li practices Falun Gong two to 21 three times per week. She fears returning to 22 China because “the Chinese government would arrest

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1 me, sentence me, and further persecute me” for 2 being involved with Falun Gong. 3 The IJ denied Li’s application for asylum, withholding 4 and CAT protection, reasoning, as described in Part III.B 5 below: “None of this testimony is plausible or credible to 6 the Court and, therefore, the Court does not believe that 7 the respondent has presented testimony to which I can give 8 credence.” In February 2007, the BIA summarily affirmed. 9 10 II 11 In considering an application for asylum, withholding 12 of removal, and CAT protection, the agency generally must 13 make a credibility finding; failure to do so may be a ground 14 for vacatur. See Diallo v. INS, 232 F.3d 279, 290 (2d Cir. 15 2000). Although Li asserts on appeal that the IJ failed to 16 make an adverse credibility determination, she did not 17 exhaust this issue before the BIA; to the contrary, her 18 submission to the BIA challenged the adverse credibility 19 determination that the IJ made. We decline to consider this 20 argument on appeal, and deem it forfeited. See Lin Zhong v. 21 U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007).

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1 III 2 In the alternative, Li challenges the IJ’s adverse 3 credibility determination. 4 A 5 When the BIA summarily affirms an IJ decision, we 6 review the IJ decision as the final agency determination. 7 Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). We review the 8 agency’s factual findings, including an adverse credibility 9 determination, under the substantial evidence standard, 10 treating them as “conclusive unless any reasonable 11 adjudicator would be compelled to conclude to the contrary.” 12 8 U.S.C. § 1252(b)(4)(B). “In cases like this one, in which 13 the IJ bases her denial of asylum on a finding that a 14 petitioner’s application is not credible, our review is 15 especially limited and highly deferential.” Borovikova, 435 16 F.3d at 156 (internal quotation marks omitted); see also Jin 17 Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 18 2005) (“We afford particular deference in applying the 19 substantial evidence standard when reviewing an IJ’s 20 credibility findings.” (internal quotation marks omitted)). 21 “When an IJ has supported an ultimate finding that an 22 applicant’s testimony was not credible by concluding that

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1 significant aspects of the testimony were implausible, the 2 decisions of our Court have not been entirely consistent.” 3 Ming Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir. 2006). For 4 example, “we have cited approvingly the BIA’s view that an 5 adverse credibility finding may be based on ‘inherently 6 improbable testimony.’” Id. (quoting Diallo v. INS, 232 7 F.3d 279, 287-88 (2d Cir. 2000)); see In re S-M-J-, 21 I. & 8 N. Dec. 722, 729 (B.I.A. 1997) (“Adverse credibility 9 determinations are appropriately based on inconsistent 10 statements, contradictory evidence, and inherently 11 improbable testimony . . . .”). But we have also said that 12 an “IJ must point to valid, or specific, cogent reasons for 13 rejecting an applicant’s testimony and may not reject 14 testimony based on speculation.” Ming Xia Chen, 435 F.3d at 15 145 (internal quotation marks and citations omitted). To be 16 sure, “the line between reasonable inference-drawing and 17 speculation is imprecise,” Guo-Le Huang v. Gonzales, 453 18 F.3d 142, 147 (2d Cir. 2006), and we do not undertake such a 19 delineation here. Nevertheless, we must decide on which 20 side of this blurry divide Li’s case falls. See Ming Xia 21 Chen, 435 F.3d at 145. 22 B

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1 The IJ found Li’s account implausible because: 2 [1] Li claimed to promote Falun Gong for over 3 six years (beginning at age 14) without ever 4 learning or practicing it herself. 5 [2] The police sought to arrest Li, a teenager 6 who never studied or practiced Falun Gong in 7 China; yet her uncle’s friend, a Falun Gong 8 practitioner, openly visited her home twenty times 9 and was never arrested. 10 [3] Li was able to depart China from the 11 airport using her own passport. 12 [4] At her hearing, Li recited only 13 “elementary information” about Falun Gong and 14 presented photographs of herself practicing Falun 15 Gong which were, as Li acknowledged, taken on a 16 single occasion. 17 Li responds that [1] she can claim persecution on 18 account of her support for Falun Gong without practicing it; 19 [2] nothing indicates that Li’s neighbors or the authorities 20 knew that she was discussing Falun Gong with her uncle’s 21 friend; [3] she was probably able to leave China on her own 22 passport because she was wanted by local, not national

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1 authorities; and [4] she answered every question asked 2 regarding her present involvement with Falun Gong. 3 Some features of Li’s account that were doubted by the 4 IJ can be rationalized or subjected to useful further 5 inquiry and analysis. But when an adverse credibility 6 finding is based partly or entirely on implausibility, we 7 review the entire record, not whether each unusual or 8 implausible feature of the account can be explained or 9 rationalized. See Borovikova, 435 F.3d at 161 (“When an IJ 10 bases an adverse credibility finding on multiple grounds, we 11 review the totality of the IJ’s decision, instead of 12 dissecting the IJ’s opinion and reviewing each portion in 13 isolation.”); cf. Liang Chen v. U.S. Atty. Gen., 454 F.3d 14 103, 106-07 (2d Cir. 2006) (explaining that an IJ “may rely 15 upon the cumulative impact” of inconsistencies “and may 16 conduct an overall evaluation of testimony in light of its 17 rationality or internal consistency and the manner in which 18 it hangs together with other evidence” (internal quotation 19 marks and citations omitted)). 20 On the basis of the entire record, we cannot disturb 21 the IJ’s finding that Li’s account is implausible. The 22 picture that emerges is of a student who promoted Falun Gong

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1 among her classmates (but did not practice it), who was 2 harassed by local officials (alone among her family), who 3 met with a Falun Gong practitioner repeatedly and openly 4 (although he was never arrested), and who successfully quit 5 the country using her own passport (despite allegations of 6 nationwide persecution). Still other implausibilities 7 inhere in Li’s account–-for example, if Li was able to leave 8 China on her own passport because she was wanted only by 9 local authorities (as Li contends), why didn’t she go to the 10 next village or elsewhere in that capacious land? 11 There are available explanations. A person could, out 12 of affection for a friend or altruistic commitment to 13 liberty, risk her safety or give up her country for 14 something she does not thoroughly understand or practice. 15 Cf. Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir. 2006) 16 (“[P]eople can identify with a certain religion, 17 notwithstanding their lack of detailed knowledge about that 18 religion’s doctrinal tenets, and . . . those same people can 19 be persecuted for their religious affiliation.”). And it is 20 possible that the Chinese authorities identified a high 21 school student, and laid a dragnet for her, while failing to 22 locate her friend’s uncle, an adult who practices and

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1 proselytizes. And she might have thought she could give the 2 police the slip at the airport (and did) even while using 3 her own passport to leave the country. 4 At the same time, these available possibilities do not 5 defeat a finding that the account is implausible. Features 6 of the account are somewhat surprising. Moreover, the 7 contours of the narrative are drawn in a way that evades 8 corroboration to an unusual extent. Her account is one that 9 could be established solely by perjury, permitting an 10 inference of fabrication. 11 In light of the overall implausibility of Li’s account, 12 we cannot say that any reasonable adjudicator would be 13 compelled to conclude that Li testified credibly. See 8 14 U.S.C. § 1252(b)(4)(B). Accordingly, we uphold the IJ’s 15 adverse credibility determination and denial of Li’s 16 applications. 17 18 * * * 19 For the foregoing reasons, we deny the petition for 20 review. Having completed our review, the pending motion for 21 a stay of removal in this petition is denied as moot.