Xianglan Cui v. Lynch

13-2470 Cui v. Lynch BIA Sichel, IJ A099 934 507 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 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 28th day of August, two thousand fifteen. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 DEBRA ANN LIVINGSTON, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 XIANGLAN CUI, 14 Petitioner, 15 16 v. 13-2470 17 NAC 18 LORETTA E. LYNCH, UNITED STATES 19 ATTORNEY GENERAL,* 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jim Li, Flushing, New York. 24 25 * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is automatically substituted for former Attorney General Eric H. Holder, Jr., as the Respondent in this case. 1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 2 General; Edward J. Duffy, Senior 3 Litigation Counsel; John M. McAdams, 4 Jr., Trial Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, D.C. 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 Xianglan Cui, a native and citizen of China, seeks 14 review of a May 28, 2013, decision of the BIA affirming an 15 Immigration Judge’s (“IJ”) March 25, 2010, decision, denying 16 her application for asylum, withholding of removal, and 17 relief under the Convention Against Torture (“CAT”). In re 18 Xianglan Cui, No. A099 934 507 (B.I.A. May 28, 2013), aff’g 19 No. A099 934 507 (Immig. Ct. N.Y. City Mar. 25, 2010). We 20 assume the parties’ familiarity with the underlying facts 21 and procedural history in this case. 22 Under the circumstances of this case, this Court 23 reviews the IJ’s decision, including the portions not 24 explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 25 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards 26 of review are well established. See 8 U.S.C. 2 1 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 2 (2d Cir. 2009). 3 For applications such as Cui’s, governed by the REAL ID 4 Act, the agency may, “[c]onsidering the totality of the 5 circumstances,” base a credibility finding on 6 inconsistencies in the applicant’s statements and other 7 evidence, “without regard to whether” they go “to the heart 8 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); 9 see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 10 2008) (per curiam). “We defer therefore to an IJ’s 11 credibility determination unless, from the totality of the 12 circumstances, it is plain that no reasonable fact-finder 13 could make such an adverse credibility ruling.” Xiu Xia 14 Lin, 534 F.3d at 167. 15 Here, the IJ reasonably based the adverse credibility 16 determination on inconsistencies in and between Cui’s 17 testimony and documentary evidence: (1) Cui testified that 18 she was interviewed by the Chinese Democracy and Justice 19 Party (“CDJP”) about the treatment and education of ethnic 20 Koreans in China, but the only interview transcript 21 submitted to the IJ did not reflect discussion of those 22 topics; (2) she testified that Chinese public security 3 1 officials visited her husband in China four times, 2 contradicting both an earlier statement and her application, 3 which listed only three visits; (3) the interview transcript 4 references the officials’ visits, but she testified that it 5 occurred at the latest in January 2007, prior to the first 6 visit in April 2007; and (4) she submitted copies of income 7 tax returns for the years 2006 to 2009, but testified that 8 she filed only one tax return and only one was stamped by 9 the IRS. 10 The IJ reasonably rejected Cui’s explanations for these 11 inconsistencies. Cui asserts that she was confused about 12 the date and content of the transcribed interview because 13 she had participated in numerous interviews, but she 14 testified that she did only two recordings and discussed 15 ethnic Koreans in both. She also suggests that the 16 Government’s questioning was confusing, but the record 17 reflects that the Government clarified its questions. As to 18 her failure to mention the fourth police visit, Cui 19 explained that she paused after listing the dates of the 20 first three visits to allow the interpreter to translate, 21 but she did not explain why she stopped mid-answer or 22 immediately thereafter mention the fourth visit, or why her 4 1 application did not list that fourth visit. Because Cui’s 2 explanations conflict with the record, the IJ reasonably 3 found that the inconsistencies called Cui’s credibility into 4 question. See Xiu Xia Lin, 534 F.3d at 167; Majidi v. 5 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that an 6 IJ need not credit an explanation for an inconsistency 7 unless the explanation would compel a reasonable fact finder 8 to do so). 9 In light of these inconsistencies, the IJ was entitled 10 to consider Cui’s failure to provide the following relevant, 11 reasonably available evidence as further bearing on her 12 credibility: copies of three of the four CDJP articles Cui 13 published and an affidavit from her husband to corroborate 14 her activism and the officials’ visits. See Biao Yang v. 15 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per curiam). 16 During her hearing, Cui testified that she did not proffer 17 the articles because she published them after the December 18 2007 deadline for evidence and they were readily available 19 online. However, the IJ reasonably rejected this 20 explanation given that she provided a copy of her first 21 article, she could have requested an extension, and it was 22 her burden to produce evidence of her eligibility for 23 relief. See 8 U.S.C. § 1158(b)(1)(B). Nor was the IJ 5 1 compelled to credit her explanation that she did not ask her 2 husband for an affidavit for fear it would endanger him, 3 because she testified that the public security officials 4 ordered her husband to communicate their threats. Cui for 5 the first time challenges her attorney’s failure to request 6 more time to file. We decline to reach this unexhausted 7 claim; ineffective assistance claims should first be 8 considered by the BIA. Arango-Aradondo v. INS, 13 F.3d 610, 9 614 (2d Cir. 1994). Given the inconsistencies and failure 10 to provide reasonably available evidence, the IJ reasonably 11 found that Cui lacked credibility. See Xiu Xia Lin, 534 12 F.3d at 167. 13 Given Cui’s lack of credibility, the only evidence 14 supporting her application was her fellow CDJP member’s 15 testimony, a CDJP membership certificate, the interview 16 transcript, her first article, and photographs of Cui from 17 the CDJP website. None of this evidence resolves her 18 credibility problems because it does not demonstrate that 19 the Chinese government is aware of her alleged political 20 activities. “[I]n order to establish eligibility for relief 21 based exclusively on activities undertaken after [her] 22 arrival in the United States, an alien must make some 23 showing that authorities in [her] country of nationality are 6 1 (1) aware of [her] activities or (2) likely to become aware 2 of [her] activities.” Hongsheng Leng v. Mukasey, 528 F.3d 3 135, 138 (2d Cir. 2008) (per curiam). Nor did the other 4 evidence satisfy Cui’s burden. The evidence of Cui’s CDJP 5 membership and articles, absent a corroborating affidavit 6 from her husband that the Chinese government discovered 7 these items, did not establish that the Chinese government 8 would learn about her CDJP activities. See Y.C. v. Holder, 9 741 F.3d 324, 337 (2d Cir. 2013) (deeming internet 10 publications insufficient to establish likelihood 11 authorities would learn about petitioner’s U.S. activities). 12 Despite Cui’s argument that her background evidence 13 established that she would be targeted as a CDJP member, 14 that evidence mentioned the banning only of the CDP, a 15 distinct organization, and only four arrests of CDJP 16 members, two of which were precipitated by actions taken in 17 China. Because her documentary evidence did not 18 rehabilitate her testimony, the agency did not err in 19 finding that Cui failed to meet her burden of proof. See 8 20 U.S.C. § 1158(b)(1)(B)(ii). 21 All of Cui’s claims are based on the same factual 22 predicate. As a result, her lack of credibility is 23 7 1 dispositive as to asylum, withholding of removal, and CAT 2 relief. Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). 3 For the foregoing reasons, the petition for review is 4 DENIED. As we have completed our review, any stay of 5 removal that the Court previously granted in this petition 6 is VACATED, and any pending motion for a stay of removal in 7 this petition is DISMISSED as moot. Any pending request for 8 oral argument in this petition is DENIED in accordance with 9 Federal Rule of Appellate Procedure 34(a)(2), and Second 10 Circuit Local Rule 34.1(b). 11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk 13 14 15 8