Filed: Feb. 02, 2016
Latest Update: Mar. 02, 2020
Summary: 14-4409 Ni v. Lynch BIA Nelson, IJ A093 339 682 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: 14-4409 Ni v. Lynch BIA Nelson, IJ A093 339 682 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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14-4409
Ni v. Lynch
BIA
Nelson, IJ
A093 339 682
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 February, two thousand sixteen.
5
6 PRESENT:
7 REENA RAGGI,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 HUI RONG NI,
14 Petitioner,
15
16 v. 14-4409
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Ramesh K. Shrestha, New York, New
24 York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Douglas
28 E. Ginsburg, Assistant Director;
29 Deitz P. Lefort, 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 is
8 DENIED.
9 Petitioner Hui Rong Ni, a native and citizen of the People’s
10 Republic of China, seeks review of an October 31, 2014, decision
11 of the BIA affirming a March 20, 2013, decision of an Immigration
12 Judge (“IJ”) denying Ni’s application for asylum, withholding
13 of removal, and relief under the Convention Against Torture
14 (“CAT”). In re Hui Rong Ni, No. A093 339 682 (B.I.A. Oct. 31,
15 2014), aff’g No. A093 339 682 (Immig. Ct. N.Y. City Mar. 20,
16 2013). We assume the parties’ familiarity with the underlying
17 facts and procedural history in this case.
18 Under the circumstances of this case, we have reviewed the
19 IJ’s decision “as modified by the BIA’s decision,” i.e., minus
20 the basis for denying relief that the BIA declined to consider
21 (the untimely filing of the asylum application). See Xue Hong
22 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
23 The applicable standards of review are well established. See
2
1 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534
2 F.3d 162, 165-66 (2d Cir. 2008).
3 The agency may, “[c]onsidering the totality of the
4 circumstances,” base a credibility finding on inconsistencies
5 in an asylum applicant’s statements and other record evidence
6 “without regard to whether” they go “to the heart of the
7 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
8
Lin, 534 F.3d at 163-64. Substantial evidence supports the
9 agency’s determination that Ni was not credible.
10 As an initial matter, contrary to the Government’s
11 contention, we consider Ni’s challenges to the agency’s adverse
12 credibility determination exhausted because they were raised
13 below, or are “subsidiary legal arguments, or arguments by
14 extension,” of those arguments raised below. Gill v. INS, 420
15 F.3d 82, 86 (2d Cir. 2005). The agency reasonably relied on
16 the inconsistency between Ni’s testimony and her husband’s
17 affidavit regarding whether her husband was present when family
18 planning officials allegedly took her for a forced
19 sterilization. See Xiu Xia
Lin, 534 F.3d at 166-67. Ni’s
20 explanations that she was estranged from her husband and had
21 not read his affidavit were not compelling given that his
22 affidavit was the only evidence she presented to corroborate
3
1 that her sterilization was forced. See Majidi v. Gonzales, 430
2 F.3d 77, 80-81 (2d Cir. 2005).
3 Ni argues that the agency erred in relying on her husband’s
4 affidavit because the IJ did not admit it into evidence and found
5 it “worthless” on the issue of whether her asylum application
6 was timely. However, it was in the IJ’s discretion to permit
7 cross-examination of Ni based on the affidavit, which was
8 submitted by Ni and marked for identification, and to consider
9 Ni’s responses in assessing credibility. See Xiao Ji Chen v.
10 U.S. Dep’t of Justice,
471 F.3d 315, 341-42 (2d Cir. 2006); Singh
11 v. Bd. of Immigration Appeals, 236 F. App’x 704, 706 (2d Cir.
12 2007). Moreover, the IJ’s determination that the affidavit was
13 “worthless” for purposes of establishing when Ni entered the
14 United States did not infect the IJ’s decision to rely on Ni’s
15 unpersuasive efforts to explain the inconsistencies between her
16 version of events and that contained in her husband’s affidavit
17 in connection with the sterilization claim. The affidavit
18 indicates that Ni’s husband’s knowledge of her date of entry
19 was based on information Ni provided him while his statements
20 related to her alleged sterilization were based on firsthand
21 knowledge.
4
1 Ni’s reliance on Bao v. Gonzales, 460 F.3d 426 (2d Cir.
2 2006), for the proposition that it was inappropriate to consider
3 her husband’s affidavit is misplaced. In Bao, the IJ relied
4 on the independent asylum application of the petitioner’s
5 husband to find the petitioner not credible.
Id. at 431.
6 Here, Ni submitted her husband’s affidavit as part of her own
7 evidentiary materials, and there is no unfairness in relying
8 on inconsistencies between the affidavit and her testimony in
9 finding her not credible.
10 In finding Ni not credible, the IJ also reasonably relied
11 on inconsistencies in the record regarding her travel to and
12 within the United States. See Xiu Xia
Lin, 534 F.3d at 166-67
13 & n.3. Ni’s explanations for these inconsistencies were not
14 compelling. See
Majidi, 430 F.3d at 80-81.
15 Having found Ni not credible, the agency reasonably
16 determined that Ni’s corroborating evidence did not
17 rehabilitate her testimony that her sterilization was forced.
18 See Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007).
19 The IJ reasonably declined to give much weight to Ni’s
20 sterilization certificate, which was purportedly issued by a
21 Chinese family planning committee. Putting to one side any
22 issue as to the authenticity of the document, neither the
5
1 certificate nor a statement from Ni’s U.S.-based physician,
2 while supporting her claim that she was sterilized, has any
3 bearing on whether her sterilization was forced.
4 Ni also argues that the IJ erred in failing to grant her
5 an opportunity to correct deficiencies in her corroborating
6 evidence. This argument lacks merit. While we have held that
7 “where an IJ finds that corroborative evidence is required to
8 support the asylum petition, we demand that immigration judges
9 give refugee seekers an opportunity to address and, where
10 possible, rectify perceived deficiencies in their testimony,”
11 Ming Shi Xue v. Bd. of Immigration Appeals, 439 F.3d 111, 122
12 (2d Cir. 2006), this rule does not apply where the need for
13 corroborating evidence is based on an adverse credibility
14 finding. See Balachova v. Mukasey,
547 F.3d 374, 382 n.5 (2d
15 Cir. 2008); Jingzhi Jin v. Holder, 481 F. App’x 640, 641 (2d
16 Cir. 2012).
17 Ultimately, the agency’s adverse credibility
18 determination is supported by substantial evidence. See
19 8 U.S.C. § 1158(b)(1)(B)(iii). That finding is dispositive of
20 asylum, withholding of removal, and CAT relief because all three
21 claims were based on the same factual predicate. See Paul v.
22 Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
6
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O=Hagan Wolfe, Clerk
7
