Yuan v. Garland

Opinion

20-2907 Yuan v. Garland BIA

Poczter, IJ

A209 163 956

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 21st day of October, two thousand twenty- 5 two. 6 7 PRESENT: 8 DENNIS JACOBS, 9 SUSAN L. CARNEY, 10 JOSEPH F. BIANCO, 11 Circuit Judges. 12 _____________________________________ 13 14 JIAN DI YUAN, 15 Petitioner, 16 17 v. 20-2907 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Robert J. Adinolfi, Esq., New 25 York, NY. 26 27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 28 Attorney General; Anthony P.

1 Nicastro, Assistant Director; 2 Sherease Pratt, Senior Litigation 3 Counsel, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC.

7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Petitioner Jian Di Yuan, a native and citizen of The 12 People’s Republic of China, seeks review of an August 4, 2020 13 decision of the BIA affirming a June 20, 2018 decision of an 14 Immigration Judge (“IJ”) denying his application for asylum, 15 withholding of removal, and relief under the Convention 16 Against Torture (“CAT”). In re Jian Di Yuan, No. A 209 163 17 956 (B.I.A. Aug. 4, 2020), aff’g No. A 209 163 956 (Immig. Ct. 18 N.Y.C. June 20, 2018). We assume the parties’ familiarity 19 with the underlying facts and procedural history. 20 As an initial matter, we find no merit in Yuan’s due 21 process arguments that the IJ’s decision lacks sufficient 22 reasoning and that the BIA exhibited bias by warning in its 23 written decision that an individual who fails to depart after 24 an order of removal will incur a fine. To establish a due

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1 process violation, the noncitizen must show that he was 2 denied the opportunity to be heard “in a meaningful 3 manner,” Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) 4 (quotation marks omitted), and that the “alleged shortcomings 5 have prejudiced the outcome of his case,” Garcia-Villeda v. 6 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008). An IJ is required 7 to conduct “a certain minimum level of analysis . . . if 8 judicial review is to be meaningful.” Poradisova v. Gonzales, 9 420 F.3d 70, 77 (2d Cir. 2005). The IJ’s decision here 10 satisfies this requirement because, as discussed below, the 11 IJ made specific findings in support of her adverse 12 credibility determination. The BIA’s notice of the possible 13 fine was an accurate restatement of the civil penalties for 14 failure to depart, see 8 U.S.C. § 1324d, and its notice does 15 not evidence bias because the agency is statutorily required 16 to inform the noncitizen of the penalties he or she might 17 incur for failure to depart, see id. § 1229a(c)(5) (“If the 18 immigration judge decides that the alien is removable and 19 orders the alien to be removed, the judge shall inform the 20 alien of the right to appeal that decision and of the 21 consequences for failure to depart under the order of removal,

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1 including civil and criminal penalties.”). 2 We have reviewed the IJ’s decision as the final agency 3 determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 4 (2d Cir. 2008). We review the IJ’s adverse credibility 5 determination under a substantial evidence standard, see Hong 6 Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and “the 7 administrative findings of fact are conclusive unless any 8 reasonable adjudicator would be compelled to conclude to the 9 contrary,” 8 U.S.C. § 1252(b)(4)(B). 10 The IJ may, “[c]onsidering the totality of the 11 circumstances,” base a credibility finding on inconsistencies 12 in an applicant’s statements or between his statements and 13 other evidence, “without regard to whether an inconsistency, 14 inaccuracy, or falsehood goes to the heart of the applicant’s 15 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to 16 an IJ’s credibility determination unless, from the totality 17 of the circumstances, it is plain that no reasonable fact- 18 finder could make such an adverse credibility ruling.” Xiu 19 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord 20 Hong Fei Gao, 891 F.3d at 76. Here, the inconsistencies, 21 omissions, and lack of reliable corroboration provide

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1 substantial evidence for the IJ’s adverse credibility 2 determination. 3 The IJ reasonably relied on inconsistencies related to 4 Yuan’s alleged arrests for attending an underground church 5 and protesting a land dispute. See 8 U.S.C. 6 § 1158(b)(1)(B)(iii). First, Yuan testified that he was 7 arrested in April 2014 for attending an underground church 8 service, but his brother’s letter states that this arrest 9 occurred months earlier, in February 2014. The IJ was not 10 required to credit Yuan’s explanation that his brother might 11 have misremembered. See Majidi v. Gonzales, 430 F.3d 77, 80 12 (2d Cir. 2005) (“A petitioner must do more than offer a 13 plausible explanation for his inconsistent statements to 14 secure relief; he must demonstrate that a reasonable fact- 15 finder would be compelled to credit his testimony.” 16 (quotation marks omitted)). 17 Second, Yuan’s oral testimony was both internally 18 inconsistent and inconsistent with his written affidavit 19 regarding the date on which he was arrested for protesting 20 the government’s taking of his family’s land: in his affidavit 21 he stated that he was arrested on March 25, 2016; at his

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1 hearing, he testified on direct examination that the protest 2 and arrest took place almost two weeks earlier, on March 12, 3 2016; and when counsel for DHS cross-examined him about the 4 land dispute, Yuan stated that the arrest took place two years 5 earlier, on March 25, 2014. The IJ was not required to accept 6 Yuan’s statement on redirect that the land seizure and protest 7 occurred in 2016 in light of the inconsistent dates he gave 8 earlier. See Siewe v. Gonzales, 480 F.3d 160, 167–68 (2d 9 Cir. 2007) (holding that a reviewing court defers to the 10 agency where there are two possible interpretations of the 11 record). 12 Third, Yuan testified that his brother paid a fine to 13 obtain Yuan’s release from detention. His brother’s letter 14 says, however, that Yuan “was beaten and paid five thousand 15 RMB and released after six days.” The IJ’s interpretation 16 of these statements as inconsistent was reasonable based on 17 the language of the letter and the lack of any indication 18 that his brother paid the fine. The IJ was not compelled to 19 credit Yuan’s explanation for the inconsistency—that his 20 brother was elderly—because his brother reported other facts 21 and exact dates consistent with Yuan’s written statements.

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1 See Majidi, 430 F.3d at 80. 2 The IJ also reasonably relied on the omission from Yuan’s 3 affidavit of any mention of an earlier arrest related to his 4 church-going. See Xiu Xia Lin, 534 F.3d at 167 (upholding 5 adverse credibility determination based on inconsistencies 6 and omissions). Yuan testified that he was arrested in June 7 2002 for attending an underground church service, but he did 8 not mention the arrest in his affidavit. The IJ did not err 9 in relying on the omission because the affidavit included 10 other details from that year, including allegations that they 11 began attending the local church in June 2002 to deal with 12 the pain of the fact that Yuan’s wife was forced to have an 13 abortion. Thus, Yuan might reasonably be expected to mention 14 an arrest that occurred in the same month as he began 15 attending church. See Hong Fei Gao, 891 F.3d at 78–79 (“[I]n 16 assessing the probative value of the omission of certain 17 facts, an IJ should consider whether those facts are ones 18 that a credible petitioner would reasonably have been 19 expected to disclose under the relevant circumstances.”). 20 The other omission highlighted by the IJ—that Yuan’s 21 brother’s letter omitted any report that the police continued

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1 to look for Yuan—does not necessarily undermine Yuan’s 2 credibility. See Hong Fei Gao, 891 F.3d at 81 (cautioning 3 against reliance on a third-party omission that “creates no 4 inconsistency with an applicant’s own statements” (emphasis 5 omitted)). But because the first omission noted and the 6 inconsistencies described above already called Yuan’s claim 7 into question, the IJ did not err in relying on the absence 8 of corroboration or indeed of any mention in this letter about 9 Yuan’s allegation that his brother told him that the police 10 continued to look for him. See Biao Yang v. Gonzales, 496 11 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to 12 corroborate his or her testimony may bear on credibility, 13 because the absence of corroboration in general makes an 14 applicant unable to rehabilitate testimony that has already 15 been called into question.”). 16 Taken together, the inconsistencies, omissions, and lack 17 of corroboration constitute substantial evidence in support 18 of the IJ’s adverse credibility determination. See 8 U.S.C. 19 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; Likai Gao 20 v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a 21 single inconsistency might preclude an alien from showing

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1 that an IJ was compelled to find him credible. Multiple 2 inconsistencies would so preclude even more forcefully.”). 3 The adverse credibility determination is dispositive of 4 Yuan’s claims for asylum, withholding of removal, and CAT 5 relief because all three claims rest on the same factual 6 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d 7 Cir. 2006). 8 For the foregoing reasons, the petition for review is 9 DENIED. All pending motions and applications are DENIED and 10 stays VACATED.

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