Filed: Aug. 11, 2017
Latest Update: Mar. 03, 2020
Summary: 15-3217 Sun v. Sessions BIA Christensen, IJ A205 436 786 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 TH
Summary: 15-3217 Sun v. Sessions BIA Christensen, IJ A205 436 786 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..
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15-3217
Sun v. Sessions
BIA
Christensen, IJ
A205 436 786
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
11th day of August, two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
YING SUN,
Petitioner,
v. 15-3217
NAC
JEFF B. SESSIONS, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Thomas V. Massucci, New York, NY.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Anthony
P. Nicastro, Assistant Director; D.
Nicholas Harling, Trial Attorney;
Tatiana G. Pino, Law Clerk; Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Ying Sun, a native and citizen of the People’s
Republic of China, seeks review of a September 18, 2015,
decision of the BIA affirming a February 6, 2014, decision of
an Immigration Judge (“IJ”) denying Sun’s application for
asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Ying Sun, No. A205 436 786
(B.I.A. Sept. 18, 2015), aff’g No. A205 436 786 (Immig. Ct. N.Y.
City Feb. 6, 2014). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed both
the BIA’s and IJ’s decisions. Yun-Zui Guan v. Gonzales, 432
F.3d 391, 394 (2d Cir. 2005). We review the agency’s adverse
credibility ruling for substantial evidence. See 8 U.S.C.
§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-66
(2d Cir. 2008). The agency may, “[c]onsidering the totality
of the circumstances,” base an adverse credibility finding on
an asylum applicant’s internally inconsistent testimony, as
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well as discrepancies between an applicant’s oral and written
statements and between an applicant’s statements and other
record evidence. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
534 F.3d at 163-64. We “defer . . . to an IJ’s credibility
determination unless . . . it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.”
Xiu Xia
Lin, 534 F.3d at 167.
Substantial evidence supports the agency’s adverse
credibility ruling, which was based on multiple inconsistencies
and omissions in Sun’s testimony. See Xiu Xia Lin, 534 F.3d
at 166-67 & n.3 (an inconsistency and an omission are
“functionally equivalent” for credibility purposes).
Sun’s asylum application states that she was forced to have
an IUD after her son was born in 1984, but Sun testified that
she did not have an IUD prior to her 1993 abortion. Her alleged
lack of memory was not a compelling explanation because Sun
included the information in her asylum application. See Majidi
v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). The fact that
Sun later forgot that she had an IUD removed in 1993 further
undermined her testimony and justified the IJ’s conclusion that
she had been testifying from a script. Again, the IJ was not
3
compelled to accept Sun’s explanation that she forgot given that
her asylum claim turned on her violation of and resistance to
China’s family planning policy. Id.
The agency also reasonably relied on a discrepancy between
Sun’s testimony and the documentary evidence regarding the date
her abortion certificate was issued. Sun testified that she
received the certificate from a doctor after her abortion in
1993, kept the document in a file at her home over the years,
and submitted this same document to the immigration court after
her son mailed it to her from China. But the certificate she
submitted was dated March 2012. Sun had no explanation at the
hearing, and her current explanation that she was confused is
not compelling, given her specific testimony that the document
she submitted was issued in 1993, not in 2012.
Id. These
inconsistencies, all of which go to the bases of Sun’s family
planning claim, provide substantial evidence for the adverse
credibility determination. Xiu Xia
Lin, 534 F.3d at 167; see
also Xian Tuan Ye v. Dep’t of Homeland Sec.,
446 F.3d 289, 295
(2d Cir. 2006) (holding that a material inconsistency regarding
past persecution may be substantial evidence of a lack of
credibility).
4
Moreover, the agency’s adverse credibility determination
is further bolstered by Sun’s confusing testimony about whether
her son had been to the United States. She first testified that
he had not, then that he had—possibly to avoid inconsistency
with her visa application—and then admitted that he had not and
that the visa application was fraudulent. See 8 U.S.C.
§ 1158(b)(1)(B)(iii) (inconsistencies need not relate to
“heart of the claim”); Xiu Xia Lin, 534 F.3d at 166-67 (same).
The agency also reasonably concluded that Sun’s
corroborating evidence did not rehabilitate her testimony.
See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
The IJ reasonably gave little weight to the letters from Sun’s
husband and cousin. See Matter of H-L-H- & Z-Y-Z-, 25 I. & N.
Dec. 209, 215 (BIA 2010) (giving little weight to documents
drafted by witnesses not subject to cross examination), rev’d
on other grounds by Hui Lin Huang v. Holder,
677 F.3d 130 (2d
Cir. 2012); see also Y.C. v. Holder,
741 F.3d 324, 334 (2d Cir.
2013) (“We generally defer to the agency’s determination of the
weight afforded to an alien’s documentary evidence.”).
Given the inconsistencies and lack of rehabilitative
corroborating evidence, the totality of the circumstances
5
supports the agency’s adverse credibility ruling. Xiu Xia Lin,
534 F.3d at 167. Because Sun’s claims for relief were all based
on the same factual predicate, the adverse credibility
determination is dispositive of asylum, withholding of removal,
and CAT relief. Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir.
2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6
