Filed: Nov. 13, 2019
Latest Update: Mar. 03, 2020
Summary: 17-4100 Song v. Barr BIA Hom, IJ A205 457 198 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: 17-4100 Song v. Barr BIA Hom, IJ A205 457 198 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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17-4100
Song v. Barr
BIA
Hom, IJ
A205 457 198
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 13th day of November, two thousand
5 nineteen.
6
7 PRESENT:
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 MICHAEL H. PARK,
11 Circuit Judges.
12 _____________________________________
13 HUANG SHENG SONG, AKA SHENG SONG
14 HUANG,
15 Petitioner,
16
17 v. 17-4100
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gerald Karikari, New York, NY.
25
26 FOR RESPONDENT: Joseph A. Hunt, Assistant
27 Attorney General; Cindy S.
28 Ferrier, Assistant Director;
29 Brendan P. Hogan, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of
32 Justice, Washington, 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 petition for review
4 is DENIED.
5 Petitioner Huang Sheng Song, a native and citizen of the
6 People’s Republic of China, seeks review of a December 5,
7 2017, decision of the BIA affirming an April 4, 2017, decision
8 of an Immigration Judge (“IJ”) denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Huang Sheng Song,
11 No. A 205 457 198 (B.I.A. Dec. 5, 2017), aff’g No. A 205 457
12 198 (Immig. Ct. N.Y. City Apr. 4, 2017). We assume the
13 parties’ familiarity with the underlying facts and procedural
14 history in this case.
15 Under the circumstances of this case, we have considered
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
18 524, 528 (2d Cir. 2006). The applicable standards of review
19 are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei
20 Gao v. Sessions,
891 F.3d 67, 76 (2d Cir. 2018); Wei Sun v.
21 Sessions,
883 F.3d 23, 27 (2d Cir. 2018). Substantial
2
1 evidence supports the adverse credibility determination and,
2 absent credible testimony, Song failed to establish past
3 persecution or a well-founded fear of future persecution.
4 Substantial evidence supports the agency’s determination
5 that Song was not credible as to his claim that Chinese police
6 beat and attempted to arrest and detain him on account of his
7 practice of Christianity. “Considering the totality of the
8 circumstances, and all relevant factors, a trier of fact may
9 base a credibility determination on . . . the inherent
10 plausibility of the applicant’s or witness’s account, the
11 consistency between the applicant’s . . . written and oral
12 statements . . . , the internal consistency of each such
13 statement, [and] the consistency of such statements with
14 other evidence of record . . . without regard to whether an
15 inconsistency, inaccuracy, or falsehood goes to the heart of
16 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
17 The agency reasonably relied on Song’s failure to
18 plausibly explain why he had his birth certificate translated
19 to English years in advance of the persecution he claimed led
20 him to flee China. See Siewe v. Gonzales, 480 F.3d 160, 169
21 (2d Cir. 2007) (“The speculation that inheres in inference is
3
1 not ‘bald’ if the inference is made available to the
2 factfinder by record facts, or even a single fact, viewed in
3 the light of common sense and ordinary experience.”). The
4 adverse credibility determination was bolstered by
5 inconsistencies within Song’s testimony about the number of
6 police officers that raided his religious gathering, and the
7 inconsistency between his statements and the Form I-213 as to
8 whether he was alone when he encountered police and
9 immigration officers in the United States. See Xiu Xia Lin
10 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (holding that an
11 IJ is permitted to rely on even minor or tangential
12 inconsistencies, so long as the totality of the circumstances
13 supports the adverse credibility determination). These
14 findings are supported by the record, and Song did not
15 rehabilitate his testimony with reliable corroborating
16 evidence. See Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d
17 Cir. 2007) (“An applicant’s failure to corroborate his or her
18 testimony may bear on credibility, because the absence of
19 corroboration in general makes an applicant unable to
20 rehabilitate testimony that has already been called into
21 question.”).
4
1 The agency also did not err in concluding that absent
2 credible testimony, Song failed to satisfy his burden of
3 proof. See 8 U.S.C. § 1158(b)(1)(B)(ii). A valid past
4 persecution claim can be based on harm other than threats to
5 life or freedom, including “non-life-threatening violence and
6 physical abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3
7 (2d Cir. 2006), but the harm must rise above “mere
8 harassment,” Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d
9 332, 341 (2d Cir. 2006). We find no error in the agency’s
10 conclusion that Song did not allege past harm rising to the
11 level of persecution: Song was not arrested or detained by
12 police during the raid on his church, he did not testify to
13 serious injury, and he never sought medical attention. See
14 Jian Qiu Liu v. Holder,
632 F.3d 820, 822 (2d Cir. 2011).
15 Absent past persecution, Song failed to establish a well-
16 founded fear of future persecution, which requires showing
17 either a reasonable possibility that he would be singled out
18 for persecution or that there is a pattern or practice of
19 persecuting similarly situated individuals. See 8 C.F.R.
20 § 1208.13(b)(2)(iii). In addition to his lack of
21 credibility, Song did not provide any reason he would be
5
1 singled out for persecution--for example, that he has held a
2 leadership role in the church, been ordained, or participated
3 in any activities that would make the Chinese government aware
4 of or interested in his religious practice. Moreover, his
5 country conditions evidence did not establish “systemic or
6 pervasive” persecution of Christians sufficient to
7 demonstrate a pattern or practice of persecution of similarly
8 situated individuals in his home province. In re A-M-, 23
9 I. & N. Dec. 737, 741 (BIA 2005); see 8 C.F.R. §
10 1208.13(b)(2)(iii). The evidence in the record established
11 that tens of millions of individuals practice in unregistered
12 churches in China and that such practice is tolerated without
13 interference in some areas, and it did not identify
14 persecution of Christians in Song’s home province of Fujian.
15 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 165-66, 174 (2d
16 Cir. 2008) (explaining BIA does not err in requiring localized
17 evidence of persecution when the record reflected wide
18 variances in how policies are understood and enforced
19 throughout China).
20 Song’s failure to meet his burden of proof for asylum
21 necessarily precluded him from establishing his eligibility
6
1 for withholding of removal and CAT relief. See 8 U.S.C.
2 § 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F.3d 148, 156–57
3 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are DENIED and
6 stays VACATED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
7
