Filed: Aug. 17, 2011
Latest Update: Feb. 22, 2020
Summary: 10-2542-ag Sun v. Holder 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 P
Summary: 10-2542-ag Sun v. Holder 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 PA..
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10-2542-ag
Sun v. Holder
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 17th day of August, two thousand eleven.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RICHARD C. WESLEY,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 XIANG MEI SUN,
14 Petitioner,
15
16 v. 10-2542-ag,
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Leslie McKay, Assistant
27 Director; Margot L. Nadel, Trial
28 Attorney, Office of Immigration
29 Litigation, Civil Division, United
30 States Department of Justice,
31 Washington, D.C.
32
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 Petitioner Xiang Mei Sun, a Chinese native and citizen,
6 seeks review of a May 27, 2010 BIA order that affirmed an
7 Immigration Judge’s (“IJ”) decision to deny Sun’s
8 application for asylum, withholding of removal, and relief
9 under the Convention Against Torture (“CAT”). In re Xiang
10 Mei Sun, No. A097 852 559 (B.I.A. May 27, 2010), aff’g No.
11 A097 852 559 (Immig. Ct. N.Y. City Apr. 10, 2008). We
12 assume the parties’ familiarity with the underlying facts
13 and procedural history of the case.
14 Here, the BIA did not issue a comprehensive opinion.
15 Rather, it adopted and supplemented the IJ’s decision; thus,
16 we have reviewed the decision of the IJ as supplemented by
17 the BIA. See Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
18 2005). Our standards of review are well-established. 8
19 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519
20 F.3d 90, 95 (2d Cir. 2008); Bah v. Mukasey,
529 F.3d 99, 110
21 (2d Cir. 2008).
22
2
1 As an initial matter, Sun’s arguments that the IJ
2 violated her right to due process by failing to hear closing
3 arguments and by “changing her mind” when the government
4 attorney requested a long decision are meritless. The
5 record indicates that Sun’s attorney did present a lengthy
6 closing argument. Furthermore, there is neither a
7 discussion of a “short” versus “long” decision anywhere in
8 the hearing transcripts, nor did the IJ ever indicate that
9 she was prepared to grant asylum. In addition, Sun’s
10 argument that the IJ’s “anger” over Sun’s failure to remove
11 her IUD demonstrated bias is also without merit. The IJ’s
12 questions as to why Sun retained her IUD, which Sun
13 testified was harmful to her health, reflect the IJ’s
14 skepticism about the veracity of Sun’s story rather than
15 anger. Moreover, even if the IJ expressed impatience or
16 dissatisfaction with Sun’s decision to retain the IUD,
17 impatience and dissatisfaction are insufficient to establish
18 bias. See United States v. English, 629 F.3d 311, 321 (2d
19 Cir. 2011).
20 For asylum applications filed before May 11, 2005 (the
21 effective date of the REAL ID Act), like Sun’s, we generally
22 will not disturb adverse credibility determinations that are
23 based on “specific examples in the record of inconsistent
3
1 statements . . . about matters material to [an applicant’s]
2 claim of persecution, or on contradictory evidence or
3 inherently improbable testimony regarding such matters.”
4 Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004) (internal
5 quotation marks omitted), overruled in part on other grounds
6 by Lin v. U.S. Dep’t of Justice,
494 F.3d 296, 305 (2d Cir.
7 2007). Here, the IJ’s credibility determination is
8 supported by substantial evidence, given Sun’s omission of a
9 basis for relief and her implausible testimony regarding her
10 intrauterine device (“IUD”). Most significantly, Sun
11 completely omitted any mention of a forced abortion from her
12 original application. She did not raise it at her asylum
13 interview or in her initial appearance before the IJ,
14 choosing instead to raise it for the first time in an
15 amended statement submitted to the IJ after she had been in
16 proceedings for nearly one year. Although Sun maintains
17 that she adequately explained this omission, the IJ
18 reasonably found that the omission was a serious
19 inconsistency that weighed against Sun’s credibility. See
20 Secaida-Rosales v. INS,
331 F.3d 297, 308 (2d Cir. 2003).
21 Further, the IJ reasonably declined to credit Sun’s
22 explanation that the preparer of her original application
4
1 told her she only needed to state one basis for relief and
2 that her first lawyer told her not to mention the abortion
3 since she had not included it in her application. See
4 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
5 The IJ also reasonably relied on an implausibility in
6 Sun’s testimony. The IJ noted that while Sun testified, and
7 the medical evidence confirmed, that her IUD caused her
8 significant medical problems, Sun refused to remove the IUD,
9 claiming that if she were returned to China, she would be
10 sterilized and possibly jailed for removing it. Because of
11 this refusal and Sun’s inability to explain why reinserting
12 an IUD if she is ordered returned to China is not preferable
13 to the suffering caused by her current medical problems, the
14 IJ reasonably found Sun’s story regarding the forcible
15 nature of her IUD insertion to be implausible. See Yan v.
16 Mukasey,
509 F.3d 63, 67 (2d Cir. 2007). The agency’s
17 credibility determination is supported by substantial
18 evidence because it is based on “specific, cogent reasons”
19 that “bear a legitimate nexus” to the finding. See Secaida-
20
Rosales, 331 F.3d at 307.
21 Sun also challenges the agency’s conclusion that she
22 failed to meet her burden of proof, arguing that the agency
5
1 erred in finding that the Chinese authorities’ issuance of a
2 summons does not rise to the level of persecution. Because
3 the summons was issued to Sun’s husband, and contained no
4 reference to Sun, it does not amount to persecution of Sun,
5 as “applicants can become candidates for asylum relief only
6 based on persecution that they themselves have suffered or
7 must suffer.” Lin v. U.S. Dep’t of Justice, 494 F.3d 296,
8 308 (2d Cir. 2007).
9 Sun further contends that the agency erred in finding
10 that she does not have a well-founded fear of persecution
11 based on her CDP activities in the United States. “[I]n
12 order to establish eligibility for relief based exclusively
13 on activities undertaken after [her] arrival in the United
14 States, an alien must make some showing that authorities in
15 [her] country of nationality are (1) aware of [her]
16 activities or (2) likely to become aware of [her]
17 activities.” Leng v. Mukasey,
528 F.3d 135, 138 (2d Cir.
18 2008). Sun has failed to satisfy either of these
19 requirements because she did not present any evidence that
20 the Chinese government was aware of her activities. Thus,
21 her assertion that she will be subjected to persecution is
22 speculative. See, e.g., Wang v. Bureau of Citizenship and
23 Immigration Service,
437 F.3d 276, 278 (2d Cir. 2006).
6
1 Because Sun’s claims all were based on the same factual
2 predicate, the agency’s adverse credibility determination
3 and burden of proof finding were proper bases for the denial
4 of asylum, withholding of removal, and CAT relief. See Paul
5 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Yang v. U.S.
6 Dep’t of Justice,
426 F.3d 520, 523 (2d Cir. 2005).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of
9 removal is VACATED and the pending motion for a stay of
10 removal in this petition is DISMISSED as moot.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
7
