Filed: Oct. 04, 2013
Latest Update: Mar. 28, 2017
Summary: 12-761 Li v. Holder BIA Rohan, IJ A089 908 328 A089 908 329 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
Summary: 12-761 Li v. Holder BIA Rohan, IJ A089 908 328 A089 908 329 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 ..
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12-761
Li v. Holder
BIA
Rohan, IJ
A089 908 328
A089 908 329
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 4th day of October, two thousand twelve.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 BING YAN LI, SHU QI WU,
14 Petitioners,
15
16 v. 12-761
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Michael Brown, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Jennifer Paisner-
27 Williams, Senior Litigation Counsel;
28 Jesse M. Bless, Trial Attorney,
1 Office of Immigration Litigation,
2 United States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioners Bing Yan Li, and her husband Shu Qi Wu,
10 natives and citizens of the People’s Republic of China, seek
11 review of a February 2, 2012, decision of the BIA affirming
12 the May 14, 2010, decision of Immigration Judge (“IJ”)
13 Patricia A. Rohan, which denied their application for
14 withholding of removal and relief under the Convention
15 Against Torture (“CAT”). In re Bing Yan Li & Shu Qi Wu,
16 Nos. A089 908 328/329 (B.I.A. Feb. 2, 2012), aff’g Nos. A089
17 908 328/329 (Immig. Ct. N.Y. City May 14, 2010). We assume
18 the parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 Under the circumstances of this case, we have reviewed
21 the IJ’s decision as supplemented by the BIA. See Yan Chen
22 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
23 applicable standards of review are well-established. See
24 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
25
562 F.3d 510, 513 (2d Cir. 2009). For applications such as
2
1 the petitioners’, governed by the amendments made to the
2 Immigration and Nationality Act by the REAL ID Act of 2005,
3 the agency may, “[c]onsidering the totality of the
4 circumstances, . . . base a credibility determination on the
5 demeanor, candor, or responsiveness of the applicant,” or
6 any inconsistency or omission in an applicant’s statements,
7 “without regard to whether the inconsistency, inaccuracy, or
8 falsehood goes to the heart of the applicant’s claim.” See
9 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534
10 F.3d 162, 167 (2d Cir. 2008) (per curiam).
11 The petitioners challenge the agency’s denial of
12 withholding of removal, in which the agency discredited
13 their testimony based on their hesitant or non-responsive
14 demeanor and contradictions regarding the time,
15 circumstances, and location of their practice of Falun Gong.
16 The petitioners do not dispute the IJ’s demeanor finding,
17 but contend that the agency failed to credit their
18 explanations – that Li was nervous and Wu was “not in a
19 right state of mind.” However, the petitioners’ argument
20 misapprehends the “particular deference” afforded to an IJ’s
21 assessment of demeanor, Majidi v. Gonzales,
430 F.3d 77, 80-
22 81 (2d Cir. 2005), because demeanor is “paradigmatically the
3
1 sort of evidence that a fact-finder is best positioned to
2 evaluate,” Li Zu Guan v. INS, 453 F.3d 129, 139-40 (2d Cir.
3 2006) (citing Jin Chen v. U.S. Dep’t of Justice,
426 F.3d
4 104, 113 (2d Cir. 2005)). Even assuming the petitioners’
5 explanations for their demeanor were plausible, where the
6 demeanor findings were not based on a misstatement of the
7 record, but rather were “tethered to the evidentiary
8 record,” Siewe v. Gonzales,
480 F.3d 160, 168-69 (2d Cir.
9 2007), the petitioners “must do more than offer a plausible
10 explanation ... to secure relief; [they] must demonstrate
11 that a reasonable fact-finder would be compelled to credit
12 [their] testimony,” Majidi, 430 F.3d at 80 (internal
13 quotation marks and citations omitted). Accordingly, the
14 petitioners’ explanations for their poor demeanor are
15 inadequate to overcome the “particular deference” due to
16 those findings. Id.
17 The petitioners also contend that the IJ failed to
18 consider the totality of the circumstances regarding their
19 explanations for their discrepant testimony. During the
20 merits hearing, Wu testified that he and Li practiced Falun
21 Gong together in parks, contradicting Li’s testimony, but
22 later testified that Li did not practice Falun Gong in
4
1 parks. Wu explained his inconsistent testimony by stating
2 that he “probably forgot [he] said that.” However, this
3 explanation was inadequate to compel a reasonable fact-
4 finder to credit his testimony because it does not explain
5 his inconsistent statements if he was testifying truthfully.
6 See Majidi, 430 F.3d at 80-81. In their brief, the
7 petitioners also explain Wu’s further inconsistent testimony
8 – that he last practiced Falun Gong at 2:00 in the
9 afternoon, whereas Li testified it was between 5:00 or 6:00
10 in the evening – by asserting that Wu’s time was only an
11 estimation. Similarly, this explanation is inadequate to
12 compel a contrary conclusion because it fails to address
13 other inconsistent aspects of his testimony – the
14 discrepancy between his and Li’s testimony regarding what
15 their children were doing while they were practicing Falun
16 Gong – and is otherwise insufficiently compelling to require
17 a reasonable fact-finder to credit it. Id.
18 Accordingly, the agency properly grounded its adverse
19 credibility determination on those inconsistencies. See Xiu
20 Xia Lin, 534 F.3d at 167 (the agency “may rely on any
21 inconsistency or omission in making an adverse credibility
22 determination as long as the ‘totality of the circumstances’
23 establishes the asylum applicant is not credible”) (emphasis
5
1 in original) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)); see
2 also 8 U.S.C. § 1252(b)(4)(B) (providing that
3 “administrative findings of fact are conclusive unless any
4 reasonable adjudicator would be compelled to conclude to the
5 contrary”). Given these inconsistency and demeanor
6 findings, the totality of the circumstances supports the
7 agency’s adverse credibility determination, 8 U.S.C.
8 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167, which is
9 dispositive of petitioners’ application for withholding of
10 removal, see Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
11 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
6
