Filed: May 29, 2015
Latest Update: Mar. 02, 2020
Summary: 14-2419 Hu v. Lynch BIA Wright, IJ A200 171 298 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 NOTATIO
Summary: 14-2419 Hu v. Lynch BIA Wright, IJ A200 171 298 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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14-2419
Hu v. Lynch
BIA
Wright, IJ
A200 171 298
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 29th day of May, two thousand fifteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 ROBERT D. SACK,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 LINZAI HU,
14 Petitioner,
15
16 v. 14-2419
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.*
22 _____________________________________
23
24 FOR PETITIONER: Gang Zhou, New York, New York.
25
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Loretta E.
Lynch is automatically substituted for former Attorney General Eric
Holder, Jr.
1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
2 Attorney General; Melissa
3 Neiman-Kelting, Senior Litigation
4 Counsel; Anna Nelson, Trial
5 Attorney, Office of Immigration
6 Litigation, United States
7 Department of Justice, Washington,
8 D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review is
13 DENIED.
14 Petitioner Hu, a native and citizen of China, seeks review
15 of a June 16, 2014, decision of the BIA affirming a December
16 11, 2012, decision of an Immigration Judge (“IJ”) denying Hu’s
17 application for asylum, withholding of removal, and relief
18 under the Convention Against Torture (“CAT”). In re Linzai Hu,
19 No. A200 171 298 (B.I.A. June 16, 2014), aff’g No. A200 171 298
20 (Immig. Ct. N.Y. City Dec. 11, 2012). We assume the parties’
21 familiarity with the underlying facts and procedural history
22 in this case.
23 Under the circumstances of this case, we review the IJ’s
24 decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t
25 of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
2
1 standards of review are well established. See 8 U.S.C.
2 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162,
3 165-66 (2d Cir. 2008).
4 For asylum applications governed by the REAL ID Act, such
5 as Hu’s, the IJ may, considering the totality of the
6 circumstances, base a credibility finding on an asylum
7 applicant’s demeanor, candor, or responsiveness, and
8 inconsistencies in her statements and other record evidence,
9 without regard to whether they go “to the heart of the
10 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
11
Lin, 534 F.3d at 163-65. We “defer . . . to an IJ’s credibility
12 determination unless, from the totality of the circumstances,
13 it is plain that no reasonable fact-finder could make such an
14 adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
15 Here, a totality of the circumstances, including Hu’s demeanor
16 and inconsistent, implausible testimony, support the agency’s
17 adverse credibility determination.
18 In this case, Hu alleged that she was subjected to a forced
19 abortion under China’s coercive family planning policies. The
20 IJ reasonably relied on Hu’s demeanor in finding her not
21 credible, noting that her testimony lacked detail, was
3
1 emotionless, and “appeared as if she was testifying or reciting
2 from a script.” We afford particular deference to the trier
3 of fact’s assessment of demeanor. Dong Gao v. BIA, 482 F.3d
4 122, 126-27 (2d Cir. 2007). Hu did not provide any details
5 regarding the abortion itself during her testimony. The IJ
6 also reasonably noted that some of Hu’s statements regarding
7 the events in China were almost identical to her personal
8 statement. For example, she used the terms “pregnancy test
9 paper” and “test papers for pregnancy” in both her statement
10 and hearing testimony, lending support to the IJ’s concerns that
11 Hu was reciting from a script.
12 The IJ’s demeanor finding was further supported by
13 inconsistencies in Hu’s testimony. We “can be . . . more
14 confident in our review of observations about an applicant’s
15 demeanor where . . . they are supported by specific examples
16 of inconsistent testimony.” Li Hua Lin v. U.S. Dep’t of
17 Justice,
453 F.3d 99, 109 (2d Cir. 2006). Hu testified that
18 she left China in December 2010 and entered the United States
19 in November 2010. She then corrected herself and testified
20 that she entered the United States in December 2010 and left
21 China in November 2010. Hu also testified that she last saw
4
1 a physician in June 2010, but later stated that she also had
2 a physical examination in November 2010. Hu further stated
3 that she spoke with her uncle only once in October 2010, but
4 her uncle testified that he spoke with Hu twice. While these
5 inconsistencies are relatively minor, the agency was entitled
6 to rely on their cumulative effect. Tu Lin v. Gonzales, 446
7 F.3d 395, 402 (2d Cir. 2006).
8 The agency also reasonably found Hu’s claim that her
9 abortion was forced implausible. Her testimony was
10 inconsistent with a medical document stating “[p]eriod stopped
11 for 68 days, requested to end pregnancy,” which the IJ
12 reasonably interpreted as suggesting that the abortion was
13 voluntary. Furthermore, Hu did not hide after she discovered
14 her pregnancy, but stayed home with her parents, requested leave
15 from employment, and opened the door when the family planning
16 officials knocked. The IJ reasonably noted that family
17 planning officials would likely look for Hu at home, and thus
18 Hu’s actions did not support her assertion that she was “in
19 hiding.” See Xiu Xia
Lin, 534 F.3d at 168 (stating that an IJ
20 may “evaluate an applicant’s credibility in light of the
5
1 ‘inherent plausibility’” of the applicant’s account (quoting
2 8 U.S.C. § 1158(b)(1)(B)(iii)).
3 Given Hu’s demeanor and inconsistent, implausible
4 testimony, substantial evidence supports the agency’s adverse
5 credibility determination, which provided an adequate basis for
6 denying her asylum, withholding of removal, and CAT relief.
7 See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167;
8 see also Paul v. Gonzales,
444 F.3d 148, 155-57 (2d Cir. 2006).
9 Because the IJ’s adverse credibility determination is supported
10 by substantial evidence, we need not review the IJ’s additional
11 findings that Hu’s asylum application was not timely and that
12 she failed to sufficiently corroborate her claim, both of which
13 were not considered by the BIA.
14 For the foregoing reasons, the petition for review is
15 DENIED.
16 FOR THE COURT:
17 Catherine O=Hagan Wolfe, Clerk
6
