Ying Li v. Bureau of Citizenship & Immigration Services

529 F.3d 79, 2008 U.S. App. LEXIS 12365, 2008 WL 2357214
CourtCourt of Appeals for the Second Circuit
DecidedJune 10, 2008
DocketDocket 07-0963-ag
StatusPublished
Cited by114 cases

This text of 529 F.3d 79 (Ying Li v. Bureau of Citizenship & Immigration Services) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ying Li v. Bureau of Citizenship & Immigration Services, 529 F.3d 79, 2008 U.S. App. LEXIS 12365, 2008 WL 2357214 (2d Cir. 2008).

Opinion

DENNIS JACOBS, Chief Judge:

Petitioner Ying Li, a native and citizen of the People’s Republic of China, seeks review of a summary affirmance by the Board of Immigration Appeals (“BIA”) of the oral decision of an immigration judge (“IJ”), which denied her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). In re Li, Ying, No. A 95 688 247 (B.I.A. Feb. 20, 2007), aff'g No. A 95 688 247 (Immig. Ct. New York City, Aug. 9, 2005). Li’s asylum application is premised on her claim that the Chinese government persecuted her for supporting Falun Gong. The IJ determined that Li was not credible, chiefly on the ground that her account is implausible, and denied her applications on that basis.

We conclude that the IJ’s adverse credibility determination is supported by substantial evidence. The IJ relied on several “valid” and “cogent” reasons for rejecting Li’s testimony as implausible. See Ming Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir.2006). While explanations are available for features of petitioner’s account that were found implausible, we review the entire record, not whether each unusual feature of the account can be explained or rationalized. See Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151, 161 (2d Cir.2006). The IJ could conclude that Li’s account, taken all in all, is implausible; and so we cannot say that any reasonable adjudicator would be compelled to conclude that she testified credibly. Accordingly, the petition is denied.

I.

Ying Li was placed in removal proceedings in January 2005 when she attempted to enter the United States without valid travel documents. Li applied for asylum, withholding of removal, and relief under the CAT, claiming that the Chinese government persecuted her for her involvement with Falun Gong.

Li’s account — as set forth in her asylum application and at her merits hearing — is as follows:

Her uncle’s friend, a practitioner, introduced her to Falun Gong. Although Li had only a “basic understanding” of Falun Gong, she was “very interested” in it because “it [is] a good practice” and is beneficial to physical and mental health. Li promoted Falun Gong “because [she] believed that [Falun] Gong *81 was not an evil cult.” However, Li was too busy with her studies to learn or practice Falun Gong in China.
After the Chinese government declared Falun Gong an “evil cult,” her uncle’s friend went into hiding. Li thought that the Chinese government “should not suppress and persecute Fa-lun Gong followers, who were kind and innocent.” Li, a student at the Fuzhou City Industrial School, would sometimes promote among her classmates opposition to the government’s suppression of Falun Gong. In September 2003, school officials forcibly detained her for seven hours, beat her, and forced her to sign a letter promising that she would end her involvement with Falun Gong.
When her uncle’s friend visited her in August 2004, he encouraged Li to continue her support. This individual visited Li’s family home about twenty times over a four to six week period. In September 2004, while Li was away, the police came to her home to arrest her. They told her father that someone had reported that she “colluded with Falun Gong followers,” and they challenged him when he denied that she was member of Falun Gong. According to Li, “[government officials pursued me everywhere, [and] threatened my family to disclose my whereabouts.” Subsequently, Li’s family arranged for her to leave China. In the United States, Li practices Falun Gong two to three times per week. She fears returning to China because “the Chinese government would arrest me, sentence me, and further persecute me” for being involved with Fa-lun Gong.

The IJ denied Li’s application for asylum, withholding and CAT protection, reasoning, as described in Part III.B below: “None of this testimony is plausible or credible to the Court and, therefore, the Court does not believe that the respondent has presented testimony to which I can give credence.” In February 2007, the BIA summarily affirmed.

II.

In considering an application for asylum, withholding of removal, and CAT protection, the agency generally must make a credibility finding; failure to do so may be a ground for vacatur. See Diallo v. INS, 232 F.3d 279, 290 (2d Cir.2000). Although Li asserts on appeal that the IJ failed to make an adverse credibility determination, she did not exhaust this issue before the BIA; to the contrary, her submission to the BIA challenged the adverse credibility determination that the IJ made. We decline to consider this argument on appeal, and deem it forfeited. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n. 1 (2d Cir.2007).

III.

In the alternative, Li challenges the IJ’s adverse credibility determination.

A.

When the BIA summarily affirms an IJ decision, we review the IJ decision as the final agency determination. Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). We review the agency’s factual findings, including an adverse credibility determination, 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). “In cases like this one, in which the IJ bases her denial of asylum on a finding that a petitioner’s application is not credible, our review is especially limited and highly deferential.” Borovikova, 435 F.3d at 156 (internal quotation marks omitted); see *82 also Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.2005) (“We afford particular deference in applying the substantial evidence standard when reviewing an IJ’s credibility findings.” (internal quotation marks omitted)).

“When an IJ has supported an ultimate finding that an applicant’s testimony was not credible by concluding that significant aspects of the testimony were implausible, the decisions of our Court have not been entirely consistent.” Ming Xia Chen v. BIA 435 F.3d 141, 145 (2d Cir.2006). For example, “we have cited approvingly the BIA’s view that an adverse credibility finding may be based on ‘inherently improbable testimony.’ ” Id. (quoting Diallo v. INS,

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529 F.3d 79, 2008 U.S. App. LEXIS 12365, 2008 WL 2357214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ying-li-v-bureau-of-citizenship-immigration-services-ca2-2008.