Filed: Dec. 23, 2019
Latest Update: Mar. 03, 2020
Summary: 18-256 Wu v. Barr BIA Poczter, IJ A209 218 799 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: 18-256 Wu v. Barr BIA Poczter, IJ A209 218 799 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 ..
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18-256
Wu v. Barr
BIA
Poczter, IJ
A209 218 799
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 23rd day of December, two thousand nineteen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 CHRISTOPHER F. DRONEY,
9 MICHAEL H. PARK,
10 Circuit Judges.
11 _____________________________________
12
13 JIN MEI WU, AKA JINMEI WU,
14 Petitioner,
15
16 v. 18-256
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Adedayo O. Idowu, Esq., New York,
24 NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant
27 Attorney General; Anthony P.
28 Nicastro, Assistant Director;
29 Yanal H. Yousef, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of
32 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 Jin Mei Wu, a native and citizen of the
6 People’s Republic of China, seeks review of a December 29,
7 2017, decision of the BIA affirming an April 26, 2017,
8 decision of an Immigration Judge (“IJ”) denying asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Jin Mei Wu, No. A209 218 799
11 (B.I.A. Dec. 29, 2017), aff’g No. A209 218 799 (Immig. Ct.
12 N.Y. City Apr. 26, 2017). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the IJ’s decision as modified by the BIA. See Xue Hong Yang
16 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
17 The applicable standards of review are well established. See
18 8 U.S.C. § 1252(b)(4); Hong Fei Gao v. Sessions,
891 F.3d 67,
19 76 (2d Cir. 2018).
20 “Considering the totality of the circumstances, and all
21 relevant factors, a trier of fact may base a credibility
22 determination on . . . the consistency between the applicant’s
2
1 or witness’s written and oral statements . . . , the internal
2 consistency of each such statement, [and] the consistency of
3 such statements with other evidence of record.” 8 U.S.C.
4 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
5 determination unless, from the totality of the circumstances,
6 it is plain that no reasonable fact-finder could make such an
7 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
8 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao,
891 F.3d
9 at 76. Substantial evidence supports the agency’s
10 determination that Wu was not credible.
11 Wu alleged past persecution in China on account of her
12 practice of Christianity. The agency reasonably relied on
13 Wu’s inconsistent statements regarding incidents that
14 occurred during her alleged detention, including that she was
15 forced to work in a shoe factory, was not given food, and was
16 hit by a guard for spreading the gospel. See 8 U.S.C.
17 § 1158(b)(1)(B)(iii); see also Xiu Xia
Lin, 534 F.3d at 165-
18 67. During Wu’s credible fear interview, she testified that
19 she was required to work at a shoe factory while she was
20 detained and a guard hit her for talking about the gospel;
21 she did not mention these incidents in her testimony.
22 Moreover, during her testimony, she stated that she had been
3
1 starved for two days while detained, but she did not mention
2 this fact in her written application or credible fear
3 interview. These inconsistent descriptions of the sole
4 incident of past harm provide substantial evidence for the
5 adverse credibility determination. See Ramsameachire v.
6 Ashcroft, 357 F.3d 169, 180–81 (2d Cir. 2004) (holding that
7 “materially different accounts” of past persecution “may
8 render the alien’s testimony incredible”); see also Hong Fei
9
Gao, 891 F.3d at 78–79 (weight given to an omission depends,
10 in part, on whether “facts are ones that a credible petitioner
11 would reasonably have been expected to disclose under the
12 relevant circumstances”); Xian Tuan Ye v. Dep’t of Homeland
13 Sec.,
446 F.3d 289, 295 (2d Cir. 2006) (holding that “material
14 inconsistency in an aspect of [petitioner’s] story that
15 served as an example of the very persecution from which he
16 sought asylum . . . afforded substantial evidence to support
17 the adverse credibility finding” (internal quotation marks
18 and citation omitted)). The agency was not required to
19 credit Wu’s explanation that she was nervous. See Ming Zhang
20 v. Holder,
585 F.3d 715, 725 (2d Cir. 2009) (“We again reject
21 the notion that a petitioner’s claim that she was nervous and
22 distracted during the credible fear interview automatically
4
1 undermines or negates its reliability as a source of her
2 statements.”); Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
3 2005) (“A petitioner must do more than offer a plausible
4 explanation for his inconsistent statements to secure relief;
5 he must demonstrate that a reasonable fact-finder would be
6 compelled to credit his testimony.” (internal quotation marks
7 omitted)). Wu’s challenge to the agency’s reliance on the
8 record of the credible fear interview is unexhausted because
9 she did not raise it before the BIA. See Lin Zhong v. U.S.
10 Dep’t of Justice,
480 F.3d 104, 121-22 (2d Cir. 2007)
11 (requiring petitioner to exhaust all issues before the BIA).
12 Moreover, as the IJ determined, the interview has sufficient
13 indicia of reliability because it was memorialized in a typed
14 question and answer format, indicating a close to verbatim
15 record. The interview included questions designed to elicit
16 an asylum claim, such as why Wu left China and what she
17 believed would happen upon her return. Moreover, Wu was
18 responsive to the questions during the interview, which was
19 conducted through a Mandarin interpreter. See Ming Zhang,
20 585 F.3d at 724–25.
21 We decline to uphold the agency’s finding of
22 inconsistency between Wu’s statement that the police visited
5
1 her home every night after she evaded a subsequent arrest and
2 her husband’s letter which reported that they were under
3 surveillance because the statements are not necessarily
4 inconsistent. See Gurung v. Barr, 929 F.3d 56, 61 (2d Cir.
5 2019).
6 Having questioned Wu’s credibility, the agency
7 reasonably relied on her failure to rehabilitate her
8 testimony with corroborating evidence. “An applicant’s
9 failure to corroborate his or her testimony may bear on
10 credibility, because the absence of corroboration in general
11 makes an applicant unable to rehabilitate testimony that has
12 already been called into question.” Biao Yang v. Gonzales,
13
496 F.3d 268, 273 (2d Cir. 2007). The letter from Wu’s
14 husband lacked detail, did not explicitly corroborate that
15 the police visited their home, and was from an interested
16 witness not subject to cross examination. See Y.C. v.
17 Holder,
741 F.3d 324, 332, 334 (2d Cir. 2013) (holding that
18 “[w]e defer to the agency’s determination of the weight
19 afforded to an alien’s documentary evidence” and upholding
20 agency’s decision not to credit letter from applicant’s
21 spouse in China). Wu’s only other evidence relating to past
22 events was a “Public Law Enforcement Decision” which stated
6
1 there was evidence she attended a Christian gathering and
2 that she would be detained for ten days and fined. The agency
3 did not abuse its discretion in declining to credit the
4 document as it did not resolve the inconsistencies in Wu’s
5 descriptions of her detention. See Y.C., 741 F.3d at 332.
6 Given the inconsistent descriptions of Wu’s detention
7 and the lack of reliable corroboration, the adverse
8 credibility determination is supported by substantial
9 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
10 534 F.3d at 167; Biao
Yang, 496 F.3d at 273. The agency
11 therefore properly denied asylum, withholding of removal, and
12 CAT relief because all three forms of relief are based on the
13 same discredited factual predicate. See Paul v. Gonzales,
14
444 F.3d 148, 156–57 (2d Cir. 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED. All pending motions and applications are DENIED and
17 stays VACATED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
7
