Filed: Nov. 29, 2016
Latest Update: Mar. 03, 2020
Summary: 15-1840 Li v. Lynch BIA Van Wyke, IJ A089 225 043 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 NOTAT
Summary: 15-1840 Li v. Lynch BIA Van Wyke, IJ A089 225 043 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 NOTATI..
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15-1840
Li v. Lynch
BIA
Van Wyke, IJ
A089 225 043
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 29th day of November, two thousand sixteen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 TIAN DI LI,
14 Petitioner,
15
16 v. 15-1840
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Aminat Sabak (Yevgeny Samokhleb, on
24 the brief), Law Offices of Yu &
25 Associates, PLLC, New York, N.Y.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General; Margaret
29 Kuehne Taylor, Senior Litigation
30 Counsel; Kate D. Balaban, Trial
31 Attorney, Office of Immigration
1 Litigation, United States Department
2 of Justice, Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a Board
5 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
6 ADJUDGED, AND DECREED that the petition for review is DENIED.
7 Petitioner Tian Di Li, a native and citizen of China, seeks
8 review of a May 19, 2015, decision of the BIA, affirming an April
9 25, 2013, decision of an Immigration Judge (“IJ”) denying Li’s
10 application for asylum, withholding of removal, and relief under
11 the Convention Against Torture (“CAT”). In re Tian Di Li, No.
12 A089 225 043 (B.I.A. May 19, 2015), aff’g No. A089 225 043 (Immig.
13 Ct. N.Y. City Apr. 25, 2013). We assume the parties’ familiarity
14 with the underlying facts and procedural history in this case.
15 Under the circumstances of this case, we have reviewed both
16 the IJ’s and the BIA’s decisions. Yun-Zui Guan v. Gonzales, 432
17 F.3d 391, 394 (2d Cir. 2005). The applicable standards of review
18 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
19 Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
20 Asylum applications like Li’s are governed by the REAL ID
21 Act, which provides that an agency may, “[c]onsidering the
22 totality of the circumstances,” base a credibility finding on
23 an applicant’s “demeanor, candor, or responsiveness,” the
24 plausibility of his account, and inconsistencies in his
2
1 statements and other record evidence “without regard to whether”
2 those inconsistencies go “to the heart of the applicant’s claim.”
3 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
4 “We defer . . . to an IJ’s credibility determination unless .
5 . . it is plain that no reasonable fact-finder could make such
6 an adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
7 Further, “[a] petitioner must do more than offer a plausible
8 explanation for his inconsistent statements to secure relief;
9 he must demonstrate that a reasonable fact-finder would be
10 compelled to credit his testimony.” Majidi v. Gonzales, 430
11 F.3d 77, 80 (2d Cir. 2005) (internal quotation marks omitted).
12 Substantial evidence supports the agency’s determination that
13 Li was not credible.
14 The agency reasonably based its credibility determination
15 in small part on inconsistencies between Li’s testimony and tax
16 returns that report where he has lived since arriving in the
17 United States. See Xiu Xia
Lin, 534 F.3d at 167 (“[A]n IJ may
18 rely on any inconsistency or omission in making an adverse
19 credibility determination as long as the ‘totality of the
20 circumstances’ establishes that an asylum applicant is not
21 credible.”); Tu Lin v. Gonzales,
446 F.3d 395, 402 (2d Cir. 2006)
22 (“[E]ven where an IJ relies on discrepancies or lacunae that,
3
1 if taken separately, concern matters ‘collateral or ancillary
2 to the claim,’ the cumulative effect may nevertheless be deemed
3 consequential by the fact-finder.” (citation omitted)). Li
4 testified that he lived in New York since arriving in the United
5 States and that he attended church in New York once a week, and
6 he submitted letters from his New York church stating that Li
7 attends Sunday masses when his work permits. However, one of
8 Li’s tax forms provides an Illinois residence. The agency
9 reasonably rejected Li’s explanation that he sometimes helped
10 his sister in Chicago with her work because it did not explain
11 why he listed an Illinois residence on his tax return. See
12 Majidi, 430 F.3d at 80. The agency also reasonably found this
13 inconsistency material because it called into question Li’s
14 claim of weekly church attendance in New York. See Xiu Xia Lin,
15 534 F.3d at 167; Tu
Lin, 446 F.3d at 402.
16 The agency reasonably relied further on Li’s failure to
17 corroborate his practice of Christianity. “An applicant’s
18 failure to corroborate his . . . testimony may bear on
19 credibility, because the absence of corroboration in general
20 makes an applicant unable to rehabilitate testimony that has
21 already been called into question” or is suspicious. Biao Yang
22 v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007). Here, the agency
4
1 reasonably found Li’s credibility undermined by his inability
2 to provide a witness (either in person or by phone) to corroborate
3 his practice of Christianity. The agency did not err in
4 rejecting Li’s explanations for why he could not provide such
5 a witness—they were busy and had to work—because they were not
6 sufficiently compelling. See Majidi, 430 F.3d at 80; cf. 8
7 U.S.C. § 1254(b)(4) (“No court shall reverse a determination
8 made by a trier of fact with respect to the availability of
9 corroborating evidence . . . [unless] a reasonable trier of fact
10 is compelled to conclude that such corroborating evidence is
11 unavailable.”).
12 Additionally, the agency reasonably relied on
13 inconsistency between Li’s claim of past persecution and the
14 country conditions evidence. See Xiu Xia
Lin, 534 F.3d at
15 166-67. Li testified that he was detained for 17 days with 10
16 fellow parishioners, interrogated, and beaten after police
17 raided his small, house church gathering in Fujian Province.
18 However, the agency reasonably concluded that the few instances
19 of similar mistreatment in Fujian Province documented in the
20 country conditions evidence related to house church leaders.
21 See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 342
22 (2d Cir. 2006) (holding that the weight accorded to State
5
1 Department reports lies largely within the discretion of the
2 agency). The agency did not err by placing “excessive reliance”
3 on the State Department 2010 International Religious Freedom
4 Report because it also considered “contrary or countervailing
5 evidence . . . as well as the particular circumstances of the
6 [Li]’s case.” See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d
7 391, 403-04 (2d Cir. 2005) (internal quotation marks omitted).
8 The IJ explained that he credited the State Department report
9 because Li’s testimony about his past harm was unpersuasive and
10 he failed to produce a witness to corroborate his practice of
11 Christianity in China or the United States.
12 However, in affirming the credibility determination we
13 decline to rely on the IJ’s demeanor finding. “[D]emeanor is
14 paradigmatically the sort of evidence that a fact-finder is best
15 positioned to evaluate,” Li Zu Guan v. INS,
453 F.3d 129, 140
16 (2d Cir. 2006), and we therefore give “particular deference to
17 credibility determinations that are based on the adjudicator’s
18 observation of the applicant’s demeanor,” Jin Chen v. U.S. Dep’t
19 of Justice,
426 F.3d 104, 113 (2d Cir. 2005). We have observed,
20 however, that we “can be still more confident in our review of
21 observations about an applicant’s demeanor where . . . they are
22 supported by specific examples of inconsistent testimony.” Li
6
1 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).
2 Although the IJ found that Li’s testimony often “mimicked” his
3 asylum application, and that Li struggled to recount details
4 of his claim that were not stated explicitly therein, the IJ
5 did not support this observation with examples of specific
6 testimony or citations to the record. The weight placed by the
7 IJ on the demeanor finding is also unclear because he appears
8 to have faulted the Government for failing to elicit further
9 details on cross-examination. Even assuming that this finding
10 was erroneous, however, we can confidently predict that the
11 agency would adhere to its decision because the remainder of
12 the credibility determination is supported by substantial
13 evidence. See Xiao Ji
Chen, 471 F.3d at 338-39 (holding that
14 remand is futile when the Court can “confidently predict” that
15 the agency would reach the same decision absent any errors).
16 Given the inconsistency and corroboration findings, the
17 totality of the circumstances supports the adverse credibility
18 determination. See Xiu Xia
Lin, 534 F.3d at 167. The
19 credibility determination is dispositive of Li’s claims for
20 asylum, withholding of removal, and CAT relief because all claims
21 relied on the same factual predicate. See Paul v. Gonzales, 444
22 F.3d 148, 156-57 (2d Cir. 2006).
7
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument in
6 this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
8
