Filed: Jun. 30, 2020
Latest Update: Jun. 30, 2020
Summary: 18-473 Ni v. Barr BIA Christensen, IJ A206 583 038 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 NOTA
Summary: 18-473 Ni v. Barr BIA Christensen, IJ A206 583 038 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 NOTAT..
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18-473
Ni v. Barr
BIA
Christensen, IJ
A206 583 038
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 30th day of June, two thousand twenty.
PRESENT:
DENNIS JACOBS,
ROSEMARY S. POOLER,
DENNY CHIN,
Circuit Judges.
_____________________________________
FANG NI,
Petitioner,
v. 18-473
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Louis H. Klein, The Kasen Law
Firm, Flushing, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant
Attorney General; Sabatino F. Leo,
Senior Litigation Counsel; Vanessa
M. Otero, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Fang Ni, a native and citizen of the People’s
Republic of China, seeks review of a February 5, 2018,
decision of the BIA affirming a May 15, 2017, decision of an
Immigration Judge (“IJ”) denying her application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Fang Ni, No. A206 583 038
(B.I.A. Feb. 5, 2018), aff’g No. A206 583 038 (Immig. Ct.
N.Y. City May 15, 2017). We assume the parties’ familiarity
with the underlying facts and procedural history.
Under the circumstances, we have considered both the IJ’s
and the BIA’s opinions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528
(2d Cir. 2006). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
Sessions,
891 F.3d 67, 76 (2d Cir. 2018).
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on the demeanor, candor, or responsiveness of
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the applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency between the
applicant’s or witness’s written and oral statements . . . ,
[and] the internal consistency of each such statement . . .
without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 163–64 (2d Cir. 2008). Substantial
evidence supports the agency’s determination that Ni was not
credible as to her claim that Chinese family planning
officials had forced her to terminate pregnancies in 1992 and
1995.
The agency reasonably relied in part on Ni’s demeanor,
noting that her answers were not responsive and that she began
shifting her answers when confronted with implausible or
inconsistent aspects of her testimony. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); see also Li Hua Lin v. U.S. Dep’t of
Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still
more confident in our review of observations about an
applicant’s demeanor where . . . they are supported by
specific examples of inconsistent testimony.”). The agency
also reasonably relied on Ni’s inconsistent statements
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regarding whether her friend informed her that officials had
discovered the 1995 pregnancy, whether she and her family
remained in contact with that friend, and how she injured her
arm when officials allegedly took her to have an abortion in
1995. See 8 U.S.C. § 1158(b)(1)(B)(iii). Nor did the agency
err in relying on the omission of Ni’s 1995 abortion from her
friend’s corroborating statement. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); see also Hong Fei Gao, 891 F.3d at 78
(“[T]he probative value of a witness’s . . . silence on
particular facts depends on whether those facts are ones the
witness would reasonably have been expected to disclose.”).
Ni did not compelling explain any of these record
inconsistencies. See Majidi v. Gonzales,
430 F.3d 77, 80 (2d
Cir. 2005).
Having questioned Ni’s credibility, the agency
reasonably relied further on her failure to rehabilitate her
testimony with reliable corroborating evidence. “An
applicant’s failure to corroborate his or her testimony may
bear on credibility, because the absence of corroboration in
general makes an applicant unable to rehabilitate testimony
that has already been called into question.” Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency
4
reasonably questioned the reliability of medical certificates
as evidence that Ni had undergone two forced abortions because
only one of the certificates stated that Ni had received an
abortion while the other stated that she had given birth to
a male baby via cesarean section. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). The agency also reasonably declined
to credit written statements from Ni’s friends because, as
discussed above, Wang failed to mention Ni’s alleged 1995
abortion, and neither author was available for cross-
examination. See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir.
2013) (“We generally defer to the agency’s evaluation of the
weight to be afforded an applicant’s documentary evidence.”);
see also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215
(B.I.A. 2010) (finding that letters from alien’s friends and
family were insufficient to provide substantial support for
alien’s claims because they were from interested witnesses
not subject to cross-examination), overruled on other grounds
by Hui Lin Huang v. Holder,
677 F.3d 130, 133–38 (2d Cir.
2012).
Given the demeanor, inconsistency, and corroboration
findings, the agency’s adverse credibility determination is
supported by substantial evidence. See 8 U.S.C.
5
§ 1158(b)(1)(B)(iii). That determination was dispositive of
asylum, withholding of removal, and CAT relief because all
three claims were based on the same factual predicate. See
Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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