Filed: Dec. 18, 2018
Latest Update: Mar. 03, 2020
Summary: 16-395 Ni v. Whitaker BIA Vomacka, IJ A075 841 782 A079 453 836 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 (
Summary: 16-395 Ni v. Whitaker BIA Vomacka, IJ A075 841 782 A079 453 836 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 (W..
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16-395
Ni v. Whitaker
BIA
Vomacka, IJ
A075 841 782
A079 453 836
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 18th day of December, two thousand
5 eighteen.
6
7 PRESENT:
8 JON O. NEWMAN,
9 DENNIS JACOBS,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12 _____________________________________
13
14 YI CI NI, AI YUE CHEN,
15 Petitioners,
16
17 v. 16-395
18 NAC
19 MATTHEW G. WHITAKER, ACTING
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Gary J. Yerman, New York, NY.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal
27 Deputy Assistant Attorney General;
28 Linda S. Wernery, Assistant
29 Director; Thankful T. Vanderstar,
06152016-10
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, DC.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioners Yi Ci Ni and Ai Yue Chen, natives and
11 citizens of the People’s Republic of China, seek review of
12 a January 14, 2016, BIA decision that affirmed the November
13 22, 2013, decision of an Immigration Judge (“IJ”) denying
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Yi Ci Ni, Ai Yue
16 Chen, Nos. A075 841 782, A079 453 836 (B.I.A. Jan. 14,
17 2016), aff’g Nos. A075 841 782, A079 453 836 (Immig. Ct.
18 N.Y. City Nov. 22, 2013). We assume the parties’
19 familiarity with the underlying facts and procedural
20 history in this case.
21 Under these circumstances, we have reviewed both the IJ’s
22 and the BIA’s opinions “for the sake of completeness.”
23 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
24 Cir. 2006). The applicable standards of review are well
2
07102018-6
1 established. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
2 157-58 (2d Cir. 2008).
3 Chen argued that she suffered past persecution for
4 discussing her support for Falun Gong in China and that she
5 fears persecution for practicing Falun Gong in the United
6 States. In pre-REAL ID Act cases, such as Chen’s, an adverse
7 credibility determination must be based on “specific, cogent
8 reasons” that “bear a legitimate nexus to the finding,” and
9 any discrepancy must be “substantial” when measured against
10 the record as a whole. Secaida-Rosales v. INS,
331 F.3d 297,
11 307-08 (2d Cir. 2003) (internal quotation marks omitted),
12 superseded by REAL ID Act as recognized in Xiu Xia Lin v.
13 Mukasey,
534 F.3d 162, 163-64 (2d Cir. 2008). Substantial
14 evidence supports the agency’s determination that Chen was
15 not credible as to her Falun Gong claim.
16 As an initial matter, the agency did not err in relying
17 in part on Chen’s statements at her credible fear interview
18 to evaluate her credibility because the interview was
19 conducted with an interpreter, the interview was
20 memorialized in a typewritten question and answer format,
21 the questions posed were designed to elicit details of
22 Chen’s asylum claim, Chen’s responses indicated that she
23 understood the questions, and the adverse credibility
3
07102018-6
1 finding was based on inconsistencies rather than omissions.
2 See Ming Zhang v. Holder, 585 F.3d 715, 724-25 (2d Cir.
3 2009). In finding Chen not credible, the agency reasonably
4 relied on Chen’s inconsistent statements about where she
5 was when police beat her, how they beat her, where on her
6 body she was hit, who paid for her release from detention,
7 how much was paid, and whether she left China after closing
8 her shoe store due to police harassment or whether she left
9 after police discovered her reading Falun Gong literature
10 in her relative’s shoe store. See Secaida-Rosales,
331
11 F.3d at 307-08; see also Tu Lin v. Gonzales,
446 F.3d 395,
12 402 (2d Cir. 2006) (“[E]ven where an IJ relies on
13 discrepancies or lacunae that, if taken separately, concern
14 matters collateral or ancillary to the claim, the
15 cumulative effect may nevertheless be deemed consequential
16 by the fact-finder.” (internal quotation marks and citation
17 omitted)). Furthermore, the agency reasonably found that
18 Chen failed to rehabilitate her testimony or satisfy her
19 burden with reliable corroborating evidence, and did not
20 err in declining to credit a letter from her uncle as it
21 was not sworn before a notary and lacked crucial details.
22 See Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007)
23 (“An applicant’s failure to corroborate his or her
4
07102018-6
1 testimony may bear on credibility, because the absence of
2 corroboration in general makes an applicant unable to
3 rehabilitate testimony that has already been called into
4 question.”); see also Y.C. v. Holder, 741 F.3d 324, 334 (2d
5 Cir. 2013) (deferring to agency’s decision to afford little
6 weight to relative’s letter because it was unsworn and from
7 an interested witness).
8 Ni and Chen further asserted a fear of persecution based
9 on the birth of their children in the United States in
10 violation of China’s population control program. For largely
11 the same reasons as set forth in Jian Hui Shao, we find no
12 error in the agency’s determination that they failed to
13 satisfy their burden for asylum, withholding of removal, and
14 CAT relief based on their family planning claim.
546 F.3d
15 at 158-67; see also Paul v. Gonzales,
444 F.3d 148, 156-57
16 (2d Cir. 2006).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, the pending motion
19 for a stay of removal in this petition is DISMISSED as moot.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe
22 Clerk of Court
5
07102018-6
