Filed: Jan. 06, 2017
Latest Update: Mar. 03, 2020
Summary: 15-3346 Ye v. Lynch BIA Cheng, IJ A200 932 280 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: 15-3346 Ye v. Lynch BIA Cheng, IJ A200 932 280 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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15-3346
Ye v. Lynch
BIA
Cheng, IJ
A200 932 280
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 6th day of January, two thousand seventeen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 CHANG PIN YE,
14 Petitioner,
15
16 v. 15-3346
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Ai Tong, New York, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Nancy
27 Friedman, Senior Litigation
28 Counsel; Margaret A. O’Donnell,
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the Government’s motion for
4 summary denial is DENIED, and, having reviewed the petition on
5 the merits, it is further ORDERED that the petition for review
6 is DENIED.
7 Petitioner Chang Pin Ye, a native and citizen of the
8 People’s Republic of China, seeks review of an October 6, 2015,
9 decision of the BIA affirming a May 1, 2014, decision of an
10 Immigration Judge (“IJ”) denying his application for asylum,
11 withholding of removal, and relief under the Convention Against
12 Torture (“CAT”). In re Chang Pin Ye, No. A200 932 280 (B.I.A.
13 Oct. 6, 2015), aff’g No. A200 932 280 (Immig. Ct. N.Y. City May
14 1, 2014). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 Government’s Motion for Summary Denial
17 We have the “inherent authority . . . to dismiss an appeal
18 or petition for review as frivolous when the appeal or petition
19 presents no arguably meritorious issue for our consideration.”
20 Pillay v. INS, 45 F.3d 14, 17 (2d Cir. 1995). In light of this
21 authority, we may grant summary denial when a petition is both
22 without merit and frivolous. See
id. at 16-17 (recognizing
2
1 that “[i]n substance, the granting of motions for summary
2 affirmance . . . is not significantly distinguishable from
3 dismissal of appeals as frivolous”). Summary disposition,
4 however, is “a rare exception to the completion of the appeal
5 process . . . [and] is available only if an appeal is truly
6 ‘frivolous.’” United States v. Davis, 598 F.3d 10, 13-14 (2d
7 Cir. 2010).
8 In its motion for summary denial, the Government argues
9 that Ye “fails to identify any specific record evidence
10 compelling a finding he testified credibly” and thus “waives
11 this dispositive issue on review.” Gov. Mot. at 2, 8. The
12 Government is incorrect. Ye challenges several of the IJ’s
13 specific findings regarding the inconsistencies in Ye’s
14 application and testimony and argues that any such
15 inconsistencies are insufficient to support the IJ’s adverse
16 credibility determination. Accordingly, Ye has raised
17 arguably meritorious issues in his appeal, and we deny the
18 Government’s motion for summary denial. Nevertheless, for the
19 reasons discussed below, Ye’s arguments are themselves
20 unpersuasive and we deny his petition for review on the merits.
21 Petition for Review
22 Under the circumstances of this case, we have reviewed both
3
1 the IJ’s and the BIA’s opinions “for the sake of completeness.”
2 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
3 2006). The applicable standards of review are well
4 established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
5 Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008). The agency may,
6 “[c]onsidering the totality of the circumstances, . . . base
7 a credibility determination on the demeanor, candor, or
8 responsiveness of the applicant,” and inconsistencies in the
9 record evidence “without regard to whether” those
10 inconsistencies go “to the heart of the applicant’s claim.”
11 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 163-64.
12 Substantial evidence supports the agency’s determination that
13 Ye was not credible when he claimed that he suffered persecution
14 and fears future persecution in China because of his Christian
15 faith.
16 The IJ reasonably relied on Ye’s demeanor in determining
17 that he was not credible, noting that his testimony was evasive
18 and unresponsive. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also
19 Majidi v. Gonzales,
430 F.3d 77, 81 n.1 (2d Cir. 2005) (noting
20 that the IJ has a “unique advantage” in making the credibility
21 finding). The record shows that Ye was evasive when testifying
22 about how he found his original attorney (who filed his asylum
4
1 application and was subsequently convicted of asylum fraud).
2 Moreover, he was unable to explain in any detail why he is
3 Christian, despite his claim to have proselytized the religion.
4 The IJ observed specifically that Ye’s demeanor “changed
5 dramatically” when the Government asked him why he was a
6 Christian. C.A.R. at 54.
7 The IJ noted several additional aspects of the record that
8 it characterized as inconsistencies. See C.A.R. 54-59. For
9 example, the IJ faulted Ye for the fact that the medical report
10 did not reflect a head exam or the treatment of bruises that
11 Ye claims to have suffered as a result of his torture in
12 detention. Moreover, the IJ expressed concern that Ye’s
13 father’s initial letter in support of his application did not
14 mention that police came to visit Ye’s house after Ye’s arrest,
15 but his supplemental letter did. Finally, the IJ noted that
16 the certificate from Ye’s church confirming his attendance and
17 arrest did not also state that the pastor of the church was
18 arrested. Why the IJ expected the certificate to reference the
19 pastor’s arrest is not clear. In the IJ’s view, Ye did not
20 provide sufficient explanations for the inconsistent evidence.
21 See Majidi, 430 F.3d at 80-81. In his petition, Ye claims that
22 the IJ erred in finding that these were inconsistencies, and
5
1 he attempts to explain them. Given the deferential standard
2 of review, however, we cannot say that the agency’s adverse
3 credibility determination was not supported by substantial
4 evidence. 8 U.S.C. § 1158(b)(1)(B)(iii).
5 Finally, Ye generally challenges the IJ’s determination
6 that he does not have a well-founded fear of future persecution.
7 The IJ reviewed China’s country conditions and found that Ye
8 did not demonstrate a clear pattern of persecution of members
9 of unregistered Christian churches, especially in the province
10 where Ye resided. Ye does not address the country conditions
11 issue specifically in his brief; instead, he argues summarily
12 that he should be granted relief “once he makes a showing that
13 he has a well-founded fear of future persecution.” Pet. Br.
14 at 29. That argument is insufficient to disturb the agency’s
15 ruling in which we detect no error. See Santoso v. Holder, 580
16 F.3d 110, 112 & n.1 (2d Cir. 2009) (denying petition where agency
17 considered background materials and rejected a
18 pattern-or-practice claim). Accordingly, because Ye failed to
19 demonstrate a well-founded fear of persecution on account of
20 his religion, the agency did not err in denying asylum,
21 withholding of removal, and CAT relief. See Paul v. Gonzales,
22
444 F.3d 148, 156-57 (2d Cir. 2006).
6
1 For the foregoing reasons, the Government’s motion for
2 summary denial and the petition for review are DENIED. As we
3 have completed our review, the pending motion for a stay of
4 removal in this petition is DISMISSED as moot.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
