Filed: Jan. 10, 2019
Latest Update: Mar. 03, 2020
Summary: 17-1709 Song v. Sessions BIA Christensen, IJ A206 572 002 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 T
Summary: 17-1709 Song v. Sessions BIA Christensen, IJ A206 572 002 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..
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17-1709
Song v. Sessions
BIA
Christensen, IJ
A206 572 002
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 10th day of January, two thousand nineteen.
5
6 PRESENT:
7 DENNY CHIN,
8 SUSAN L. CARNEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 FANGJIAN SONG,
14 Petitioner,
15
16 v. 17-1709
17 NAC
18 MATTHEW G. WHITAKER, ACTING
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Hui Chen, Law Offices of Hui
24 Chen Associates, P.C.,
25 Flushing, NY.
26
27
1 FOR RESPONDENT: Chad A. Readler, Acting Assistant
2 Attorney General; Jeffery R.
3 Leist, Senior Litigation Counsel;
4 Abigail E. Leach, Trial Attorney,
5 Office of Immigration Litigation,
6 United States Department of
7 Justice, Washington, DC.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Fangjian Song, a native and citizen of the
14 People’s Republic of China, seeks review of an April 28,
15 2017, decision of the BIA affirming an August 31, 2016,
16 decision of an Immigration Judge (“IJ”) denying Song’s
17 application for asylum, withholding of removal, and relief
18 under the Convention Against Torture (“CAT”). In re
19 Fangjian Song, No. A206 572 002 (B.I.A. Apr. 28, 2017),
20 aff’g No. A206 572 002 (Immig. Ct. N.Y. City Aug. 31,
21 2016). We assume the parties’ familiarity with the
22 underlying facts and procedural history.
23 Given the circumstances of this case, we have
24 “review[ed] the IJ’s decision as modified by the BIA, i.e.,
25 minus the bases for denying relief that the BIA expressly
26 declined to consider.” Flores v. Holder, 779 F.3d 159, 163
2
1 (2d Cir. 2015). The applicable standards of review are
2 well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
3 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
4 “Considering the totality of the circumstances, and all
5 relevant factors, a trier of fact may base a credibility
6 determination on . . . the consistency between the applicant’s
7 or witness’s written and oral statements . . . , the internal
8 consistency of each such statement, [and] the consistency of
9 such statements with other evidence of record . . . without
10 regard to whether an inconsistency, inaccuracy, or falsehood
11 goes to the heart of the applicant’s claim.” 8 U.S.C.
12 § 1158(b)(1)(B)(iii); Hong Fei Gao v. Sessions,
891 F.3d 67,
13 76-78 (2d Cir. 2018); Xiu Xia
Lin, 534 F.3d at 163-64.
14 Substantial evidence supports the agency’s determination that
15 Song was not credible.
16 Song’s asylum application was based on a single incident
17 of past persecution, in which police allegedly detained and
18 beat him in retaliation for his efforts to resist his wife’s
19 forced abortion. The agency reasonably relied on Song’s
20 inconsistent statements in his application, interview with an
21 asylum officer, and hearing regarding the details of this
22 incident. Song testified that five family planning officials
3
1 came to his home, three men and two women. This was
2 inconsistent with his statement to the asylum officer, in
3 which he specified that the officials were four women and one
4 man. In addition, Song told the asylum officer that the
5 police beat him with a baton, but then, when testifying before
6 the IJ, expressly denied that they had used a baton. Song
7 tried to explain these discrepancies by claiming that the
8 asylum officer’s notes were wrong and that he suffered from
9 memory problems, but the IJ was not required to credit these
10 explanations. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
11 Cir. 2005) (“A petitioner must do more than offer a plausible
12 explanation for his inconsistent statements to secure relief;
13 he must demonstrate that a reasonable fact-finder would be
14 compelled to credit his testimony.” (internal quotations
15 omitted)).
16 Song contends that the agency erred by relying in part
17 on the notes of the asylum officer, which, he claims,
18 violated his Sixth Amendment right to confront witnesses
19 against him. We disagree. Sixth Amendment rights do not
20 apply in removal proceedings, which are civil in nature.
21 United States v. Yousef,
327 F.3d 56, 143 (2d Cir. 2003).
22 And the agency does not err by relying on an asylum
4
1 officer’s interview notes as long as the notes meet a
2 “minimum standard” of containing a “meaningful, clear, and
3 reliable summary of the statements” made at the interview.
4 Diallo v. Gonzales, 445 F.3d 624, 632 (2d Cir. 2006). The
5 notes in question met this standard: they were typewritten,
6 organized, contemporaneous, and summarized the questions
7 asked and the answers given. See
id. (explaining that
8 notes may be unreliable when they are “informal, personal
9 notations” that are “randomly organized, cryptic to all but
10 the note-taker, and partially illegible” (internal
11 quotation marks and citation omitted)).
12 Song also argues that the agency gave insufficient weight
13 to his claim that he suffered memory loss as a result of the
14 alleged police beating, which, he says, explains his
15 inconsistent answers. But the agency was not required to
16 credit his corroborating evidence -- a one-page document from
17 a Chinese hospital stating that he suffered “wound on the
18 head part, blood stasis inside, nausea, emesis” -- because it
19 provided no evidence of memory loss. See Y.C. v. Holder, 741
20 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the
21 agency’s evaluation of the weight to be afforded an
22 applicant’s documentary evidence.”).
5
1 Given the inconsistencies relating to the sole incident
2 of past harm, substantial evidence supports the agency’s
3 adverse credibility determination. See 8 U.S.C.
4 § 1158(b)(1)(B)(iii); Xian Tuan Ye v. DHS, 446 F.3d 289,
5 294-95 (2d Cir. 2006). As the agency concluded, Song’s
6 inconsistent statements called into question his testimony,
7 and impugned his credibility generally. See Siewe v.
8 Gonzales,
480 F.3d 160, 170 (2d Cir. 2007). Accordingly,
9 the adverse credibility determination was dispositive of
10 asylum, withholding of removal, and CAT relief. See Paul
11 v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of removal
14 that the Court previously granted in this petition is VACATED,
15 and any pending motion for a stay of removal in this petition
16 is DISMISSED as moot. Any pending request for oral argument
17 in this petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe Clerk of Court
22
23
6
