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
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