Filed: May 26, 2017
Latest Update: Mar. 03, 2020
Summary: 15-718 Sun v. Sessions BIA Balasquide, IJ A078 858 610 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
Summary: 15-718 Sun v. Sessions BIA Balasquide, IJ A078 858 610 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 N..
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15-718
Sun v. Sessions
BIA
Balasquide, IJ
A078 858 610
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
26th day of May, two thousand seventeen.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
JIN YAN SUN,
Petitioner,
v. 15-718
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Richard Tarzia, Belle Mead, NJ.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General;
Michelle G. Latour, Deputy Director;
Victor M. Lawrence, Senior
Litigation Counsel, 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 Jin Yan Sun, a native and citizen of the People’s
Republic of China, seeks review of a February 19, 2015, decision
of the BIA affirming a September 13, 2012, decision of an
Immigration Judge (“IJ”) denying her application for asylum and
withholding of removal. In re Jin Yan Sun, No. A078 858 610
(B.I.A. Feb. 19, 2015), aff’g No. A078 858 610 (Immig. Ct. N.Y.
City Sept. 13, 2012). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed the
IJ’s decision as modified by the BIA, i.e., we reach only the
basis on which the BIA affirmed the IJ’s decision—the adverse
credibility ruling. Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d 520, 522 (2d Cir. 2005). The applicable standards of
review are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu
Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008). The
agency may, “[c]onsidering the totality of the circumstances,”
base a credibility determination on inconsistencies in the
record evidence “without regard to whether” those
2
inconsistencies go “to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
Substantial evidence supports the agency’s determination that
Sun was not credible as to either her fear of persecution on
account of her conversion to Christianity or her fear of forced
sterilization under China’s family planning policy.
The agency reasonably relied on inconsistencies among
Sun’s testimony, asylum applications, and sworn statements to
immigration officials regarding whether Chinese officials
damaged her house and arrested her mother on account of her
mother’s Falun Gong practice. See Xiu Xia Lin, 534 F.3d at
166-67; see also Ming Zhang v. Holder,
585 F.3d 715, 721-22 (2d
Cir. 2009). Significantly, in one of her applications, Sun
admitted that she had fabricated a Falun Gong claim on the advice
of a smuggler thereby demonstrating a willingness to lie to
authorities to secure immigration benefits. She later retracted
that assertion, but then pressed the claim again at her final
hearing, and stated that what she told immigration officials
in 2002 was the truth. She did not provide a compelling
explanation for these inconsistencies, nor provide a letter
from her mother reporting the mother’s alleged Falun Gong
3
activities. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
2005).
In addition, Sun’s evidence was inconsistent regarding
whether Sun’s mother was forcibly sterilized and where Sun would
live if removed to China. See Xiu Xia Lin, 534 F.3d at 167-68.
Having questioned Sun’s credibility, the agency reasonably
relied further on her failure to offer her husband’s testimony
either to resolve the inconsistencies or otherwise corroborate
her claims. See Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d
Cir. 2007); Yan Juan Chen v. Holder,
658 F.3d 246, 253 (2d Cir.
2011).
Given Sun’s inconsistent evidence, her admitted
willingness to lie to immigration officials to secure
immigration benefits, and her lack of corroboration, the agency
reasonably found Sun not credible on both of her claims for
relief, her conversion to Christianity and her violation of the
family planning policy. See 8 U.S.C. § 1158(b)(1)(B)(iii);
Xiu Xia Lin, 534 F.3d at 163-64. That finding is dispositive
of asylum and withholding of removal. See Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
4
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5
