Filed: Jan. 24, 2018
Latest Update: Mar. 03, 2020
Summary: 16-2177 Tong v. Sessions BIA Hom, IJ A205 240 661/662 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
Summary: 16-2177 Tong v. Sessions BIA Hom, IJ A205 240 661/662 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 NO..
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16-2177
Tong v. Sessions
BIA
Hom, IJ
A205 240 661/662
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
24th day of January, two thousand eighteen.
PRESENT:
DENNIS JACOBS,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
DONGMEI TONG, ZHAOYUE SUN,
Petitioners,
v. 16-2177
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Louis H. Klein, Flushing, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Mary Jane Candaux,
Assistant Director; Michael C.
Heyse, 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.
Petitioners Dongmei Tong and Zhaoyue Sun, natives and
citizens of the People’s Republic of China, seek review of a
June 7, 2016, decision of the BIA affirming a March 13, 2015,
decision of an Immigration Judge (“IJ”) denying Tong’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”).1 Dongmei Tong,
Zhaoyue Sun, No. A205 240 661/662, (B.I.A. June 7, 2016), aff’g
No. A205 240 661/662 (Immig. Ct. N.Y. City Mar. 13, 2015). We
assume the parties’ familiarity with the underlying facts and
procedural history of this case.
Under the circumstances of this case, we have reviewed the
IJ’s decision as supplemented by the BIA. See Wala v. Mukasey,
511 F.3d 102, 105 (2d Cir. 2007). The 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).
1 Sun sought asylum only as Tong’s derivative beneficiary, and did not seek
withholding of removal or CAT relief in his own right.
2
The agency may, “[c]onsidering the totality of the
circumstances,” base an adverse credibility determination on
inconsistencies or omissions in an applicant’s testimony,
application, and other record evidence, regardless of whether
any such discrepancies “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, 166-67 & n.2. “An applicant’s failure to
corroborate . . . 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). “We defer . . . to an IJ’s credibility
determination unless . . . it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.”
Xiu Xia
Lin, 534 F.3d at 167.
Significant inconsistencies regarding the timeline of
Tong’s prior marriage and her ex-husband’s abuse provide
substantial evidence for the adverse credibility
determination. See Xian Tuan Ye v. Dep’t of Homeland Sec., 446
F.3d 289, 295-96 (2d Cir. 2006) (holding that a single material
inconsistency relating to central aspect of an asylum claim
3
provided substantial evidence for an adverse credibility
determination). For example, Tong’s testimony that she first
moved out in 2007 conflicted with a divorce certificate showing
she and her ex-husband divorced in 2003. And Tong’s testimony
that she did not see her ex-husband between 2004 and December
2007 conflicted with a letter from Tong’s former classmate
stating that he saw Tong after an incident of abuse in July 2007.
Tong testified that she was confused and unable to recall
the exact dates of events. While it is plausible that severe
injuries and trauma from this abuse would affect Tong’s ability
to recall accurately the timeline of events, the agency
reasonably rejected this explanation because Tong did not
provide a medical or psychological evaluation to support it.
Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“A
petitioner must do more than offer a plausible explanation for
his inconsistent statements to secure relief; he must
demonstrate that a reasonable fact-finder would be compelled
to credit his testimony.” (internal quotation marks omitted)).
Although an asylum application need not include all the
details of a claim, see Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.
2006), Tong’s omission of details bolsters the adverse
4
credibility determination, particularly as she omitted a
serious incident in which her husband threatened her with a gun,
see Xiu Xia Lin, 534 F.3d at 166-67 & n.3 (“An inconsistency
and an omission are . . . functionally equivalent” for
credibility purposes).
The agency also reasonably concluded that Tong’s
corroborating evidence did not rehabilitate her credibility.
She did not submit evidence to corroborate that her husband was
a police officer, arrest records related to the 2010 incident,
or medical records for her son to corroborate Tong’s testimony
that he also suffered abuse. See Biao Yang, 496 F.3d at 273.
Tong’s challenge to the agency’s decision to give her medical
records little weight is both unexhausted, Foster v. INS,
376
F.3d 75, 78 (2d Cir. 2004) (requiring petitioner to raise issues
to the BIA in order to preserve them for judicial review), and
without merit. We generally “defer to the agency’s
determination of the weight afforded to an alien’s documentary
evidence.” Y.C. v. Holder,
741 F.3d 324, 334 (2d Cir. 2013).
Here, the medical records related only to incidents from 2000
and were not authenticated or certified by the hospital.
5
Given Tong’s inconsistent testimony regarding the timeline
during which her abuse occurred, her omission of details
concerning her abuse, and given her lack of reliable
corroboration, the totality of the circumstances supports the
adverse credibility determination. See Xiu Xia Lin, 534 F.3d
at 167; Biao
Yang, 496 F.3d at 273; Xian Tuan
Ye, 446 F.3d at
295-96. Because Tong’s claims were all based on the same
factual predicate, the adverse credibility determination is
dispositive of her claims for asylum, withholding of removal,
and CAT relief. 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
6
