Filed: Oct. 16, 2014
Latest Update: Mar. 02, 2020
Summary: 12-1556 Xu v. Holder BIA Vomacka, IJ A089 253 586 A089 253 587 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 (W
Summary: 12-1556 Xu v. Holder BIA Vomacka, IJ A089 253 586 A089 253 587 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 (WI..
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12-1556
Xu v. Holder
BIA
Vomacka, IJ
A089 253 586
A089 253 587
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of October, two thousand fourteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROSEMARY S. POOLER,
9 REENA RAGGI,
10 Circuit Judges.
11 _____________________________________
12
13 CHENG SHU XU, XUE FAN PIAO,
14 Petitioners,
15
16 v. 12-1556
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONERS: Evan Goldberg, Of Counsel for the
24 Law Office of Theodore M. Davis, New
25 York, NY.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; John S. Hogan,
29 Senior Litigation Counsel; Ashley Y.
30 Martin, Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 Washington, D.C.
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 Petitioners Cheng Shu Xu and Xue Fan Piao, wife and
6 husband and natives and citizens of China, seek review of a
7 March 29, 2012, order of the BIA, affirming the December 21,
8 2009, decision of Immigration Judge (“IJ”) Alan Vomacka,
9 pretermitting their applications for asylum and denying
10 withholding of removal and relief under the Convention
11 Against Torture (“CAT”). In re Cheng Shu Xu, Xue Fan Piao,
12 Nos. A089 253 586/587 (B.I.A. Mar. 29, 2012), aff’g Nos.
13 A089 253 586/587 (Immig. Ct. N.Y. City Dec. 21, 2009). We
14 assume the parties’ familiarity with the underlying facts
15 and procedural history in this case.
16 Under the circumstances of this case, we have reviewed
17 both the BIA’s and IJ’s opinions, including the portions of
18 the IJ’s decision not explicitly discussed by the BIA.
19 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).
20 The applicable standards of review are well established.
21 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
22 F.3d 510, 513 (2d Cir. 2009). Petitioners challenge only
23 the denial of withholding of removal and CAT relief on the
24 basis of their harboring of North Korean refugees in China.
2
1 For applications governed by the REAL ID Act of 2005,
2 the agency may base a credibility finding on an asylum
3 applicant’s demeanor, the plausibility of her account, and
4 inconsistencies in her statements, without regard to whether
5 they go “to the heart of the applicant’s claim.” 8 U.S.C.
6 § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,
7 265 (B.I.A. 2007). “We defer . . . to an IJ’s credibility
8 determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder
10 could make such an adverse credibility ruling.” Xiu Xia Lin
11 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
12 Petitioners do not contest the credibility-based
13 denials of their family planning claims and Xu’s pro-
14 democracy claim. Instead, Petitioners argue that the
15 agency’s adverse credibility determination did not apply to
16 their refugee harboring claim. However, Petitioners’
17 argument is misplaced. Indeed, the IJ explicitly determined
18 that the lack of corroborating evidence concerning the scar
19 that Xu allegedly obtained during her detention for refugee
20 harboring further undermined her credibility. Moreover,
21 because Xu’s and Piao’s applications indicated that they
22 fled China for fear of being sent for medical treatment if
3
1 they were again caught harboring refugees, the uncontested
2 discrepancies in the record concerning when Piao left his
3 home, when he left China, and where and for how long he went
4 into hiding in between related directly to Petitioners’
5 refugee harboring claim.
6 In addition, the IJ properly based the adverse
7 credibility determination, in part, on an inconsistency
8 between Petitioners’ application statements concerning who
9 was primarily responsible for harboring the North Korean
10 refugees. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
11 534 F.3d at 167. Although the IJ acknowledged that this
12 inconsistency was not a major point, “an IJ may rely on any
13 inconsistency or omission in making an adverse credibility
14 determination as long as the ‘totality of the circumstances’
15 establishes that an asylum applicant is not credible.” Xiu
16 Xia
Lin, 534 F.3d at 167. Here, in addition to this
17 admittedly minor point, the totality of the circumstances
18 included extensive and uncontested discrepancies in the
19 record concerning Petitioners’ family planning claims and
20 Xu’s pro-democracy claim, as well as an explicit finding
21 that Xu had deliberately misstated answers to other
22 questions in an attempt to inflate Petitioners’ claims. All
4
1 of these discrepancies, coupled with the identified
2 refugee-harboring-specific discrepancies, afforded a
3 reasonable basis for the agency to deny all of Petitioners’
4 claims, which were entirely dependent on their credibility.
5 See Xiu Xia Lin, 534 F.3d at 167; Paul v. Gonzales,
444 F.3d
6 148, 156 (2d Cir. 2006); cf. Siewe v. Gonzales,
480 F.3d
7 160, 168-69 (2d Cir. 2007). Therefore, we are unable to
8 conclude, based on the totality of the circumstances, that
9 “no reasonable fact-finder could make such an adverse
10 credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
11 Having called Petitioners’ credibility into question,
12 the agency reasonably noted that Xu’s failure to provide
13 corroborative evidence concerning the scar on her wrist,
14 which she testified was the result of being stepped on
15 during her March 2006 detention for refugee harboring,
16 further undermined her credibility. See 8 U.S.C.
17 § 1158(b)(1)(B)(ii) (“The testimony of the applicant may be
18 sufficient to sustain the applicant’s burden without
19 corroboration, but only if the applicant satisfies the trier
20 of fact that the applicant’s testimony is credible, is
21 persuasive, and refers to specific facts sufficient to
22 demonstrate that the applicant is a refugee.” (emphasis
23 added)). Although Petitioners contend, based on non-
5
1 controlling authority, that the agency imposed an
2 unreasonable requirement that Xu produce medical evidence
3 demonstrating that her scar was from the beating, the IJ
4 merely stated that it may be possible and often has been
5 possible to obtain medical evidence concerning the cause of
6 the scar. We have recognized that an applicant’s failure to
7 corroborate her testimony may bear on credibility, either
8 because the absence of particular corroborating evidence is
9 viewed as suspicious, or because the absence of
10 corroboration in general makes an applicant unable to
11 rehabilitate testimony that has already been called into
12 question. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
13 Cir. 2007).
14 Because the agency’s credibility-based denial of
15 Petitioners’ refugee harboring claim is supported by
16 substantial evidence, Petitioners’ assertion that the agency
17 erred in failing to explicitly assess the country conditions
18 evidence concerning the treatment of North Korean refugee
19 harborers in China is misplaced. See Xiao Ji Chen v. U.S.
20 Dep’t of Justice,
471 F.3d 315, 337 n.17 (2d Cir. 2006)
21 (presuming that the agency “has taken into account all of
22 the evidence before [it], unless the record compellingly
23 suggests otherwise”); Zhi Yun Gao v. Mukasey,
508 F.3d 86,
6
1 87 (2d Cir. 2007) (the agency “need not expressly parse or
2 refute on the record each individual argument or piece of
3 evidence offered by the petitioner” (internal quotation
4 marks omitted)); see also INS v. Bagamasbad, 429 U.S. 24, 25
5 (1976) (“As a general rule courts and agencies are not
6 required to make findings on issues the decision of which is
7 unnecessary to the results they reach.”).
8 Lastly, because, as the BIA recognized, the only basis
9 for Petitioners’ claims depended on their credibility, the
10 agency also did not err in denying CAT relief on
11 Petitioners’ refugee harboring claim. See Xue Hong Yang v.
12 U.S. Dep’t of Justice,
426 F.3d 520, 523 (2d Cir. 2005).
13 For the foregoing reasons, the petition for review is
14 DENIED.
15
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
7
