Filed: Mar. 02, 2016
Latest Update: Mar. 02, 2020
Summary: 14-4329 Yun v. Lynch BIA Segal, IJ A201 160 363 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: 14-4329 Yun v. Lynch BIA Segal, IJ A201 160 363 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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14-4329
Yun v. Lynch
BIA
Segal, IJ
A201 160 363
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 2nd day of March, two thousand sixteen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 GERARD E. LYNCH,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 CHIN YA YUN, AKA YA YUN CHEN,
14 Petitioner,
15
16 v. 14-4329
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Troy Nader Moslemi, Flushing, New
24 York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Kiley
28 Kane, Senior Litigation Counsel;
29 Annette M. Wietecha, Attorney,
1 Office of Immigration Litigation,
2 United States Department of Justice,
3 Washington, D.C.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review is
7 DENIED.
8 Petitioner Chin Ya Yun, a native and citizen of the People’s
9 Republic of China, seeks review of an October 30, 2014, decision
10 of the BIA affirming a December 26, 2013, decision of an
11 Immigration Judge (“IJ”) denying Yun’s application for asylum,
12 withholding of removal, and relief under the Convention Against
13 Torture (“CAT”). In re Chin Ya Yun, No. A201 160 363 (B.I.A.
14 Oct. 30, 2014), aff’g No. A201 160 363 (Immig. Ct. N.Y. City
15 Dec. 26, 2013). We assume the parties’ familiarity with the
16 underlying facts and procedural history in this case.
17 Under the circumstances of this case, we have reviewed both
18 the IJ’s and the BIA’s decisions, “for the sake of
19 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
20 524, 528 (2d Cir. 2006). The applicable standards of review
21 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
22 Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
2
1 For asylum applications, like Yun’s, governed by the REAL
2 ID Act, the agency may, “[c]onsidering the totality of the
3 circumstances,” base a credibility finding on inconsistencies
4 between the applicant’s statements and other evidence, “without
5 regard to whether” they go “to the heart of the applicant’s
6 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,
7 534 F.3d 162, 163-64 (2d Cir. 2008). “We defer . . . to an IJ’s
8 credibility determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder could
10 make such an adverse credibility ruling.” Xiu Xia Lin,
534 F.3d
11 at 167.
12 Substantial evidence supports the adverse credibility
13 determination, which was based on inconsistencies between Yun’s
14 testimony and the record of her credible fear interview,
15 internal inconsistencies in her testimony, and her evasiveness
16 while testifying. As an initial matter, the IJ did not err in
17 finding that the interview record bore sufficient indicia of
18 reliability to be entitled to evidentiary weight. Ming Zhang
19 v. Holder,
585 F.3d 715, 725 (2d Cir. 2009). The interview was
20 conducted in Yun’s best language, the questions were designed
21 to elicit her asylum claim, and there was no indication that
3
1 Yun was reluctant to answer questions. Id. at 723-25.
2 The record supports the agency’s conclusion that Yun’s
3 testimony was both internally inconsistent and inconsistent
4 with her credible fear interview. She testified that she first
5 learned that members of her church were arrested when she
6 received her pastor’s letter. However, when confronted with
7 the record of her credible fear interview reflecting earlier
8 knowledge of the arrests, she eventually responded that she knew
9 that church members were arrested while she was still in China,
10 but that she did not know which members or how many were
11 arrested. The IJ reasonably interpreted this as inconsistent,
12 particularly given Yun’s testimony about the sequence of
13 events, which did not include any statement that she learned
14 of any arrests. Siewe v. Gonzales,
480 F.3d 160, 167 (2d Cir.
15 2007) (“Decisions as to . . . which of competing inferences to
16 draw are entirely within the province of the trier of fact.”
17 (quoting Palazza ex rel. Delmage v. Corio,
232 F.3d 38, 44 (2d
18 Cir. 2000))).
19 The adverse credibility determination is further supported
20 by the IJ’s demeanor finding, to which we defer. Majidi v.
21 Gonzales,
430 F.3d 77, 81 n.1 (2d Cir. 2005). The record
4
1 supports the IJ’s finding that Yun testified in an evasive
2 manner. She gave non-responsive answers, responding only that
3 the church had recorded her name and telephone number, when
4 questioned about arrests. She also twice failed to answer
5 questions about a letter from her mother, and once regarding
6 a letter from her pastor.
7 In light of Yun’s inconsistent and evasive testimony, which
8 largely related to the sole incident underlying her asylum
9 claim, substantial evidence supports the adverse credibility
10 determination. Xiu Xia Lin, 534 F.3d at 167; Xian Tuan Ye v.
11 Dep’t of Homeland Sec.,
446 F.3d 289, 295 (2d Cir. 2006). That
12 determination is dispositive of asylum, withholding of removal,
13 and CAT relief, as all three claims rely on the same factual
14 predicate. Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir.
15 2006).
16 Yun’s arguments that the agency failed to consider her
17 documentary evidence and whether it rehabilitates her testimony
18 do not survive our presumption “that an IJ has taken into account
19 all of the evidence before [her].” Xiao Ji Chen v. U.S. Dep’t
20 of Justice,
471 F.3d 315, 336 n.17 (2d Cir. 2006). And her
21 argument that the agency failed to consider whether she had a
5
1 reasonable fear of future persecution independent of her past
2 persecution fails, because the adverse credibility
3 determination extended to whether she would practice
4 Christianity in China. See Siewe, 480 F.3d at 170; cf. Paul,
5 444 F.3d at 153 n.4.
6 For the foregoing reasons, the petition for review is
7 DENIED.
8 FOR THE COURT:
9 Catherine O=Hagan Wolfe, Clerk
6
