15-1140
Sun v. Lynch
BIA
Wright, IJ
A201 295 610
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 22nd day of April, two thousand sixteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 QING SUN,
15 Petitioner,
16
17 v. 15-1140
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Lee Ratner, Law Offices of
25 Michael Brown, New York, New York.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General; Brianne
29 Whelan Cohen, Senior Litigation
30 Counsel; Stefanie A. Svoren-Jay,
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
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 is
9 DENIED.
10 Petitioner Qing Sun, a native and citizen of China, seeks
11 review of a March 16, 2015, decision of the BIA affirming an
12 April 18, 2013, decision of an Immigration Judge (“IJ”) denying
13 Sun‟s application for asylum, withholding of removal, and
14 relief under the Convention Against Torture (“CAT”). In re
15 Qing Sun, No. A201 295 610 (B.I.A. Mar. 16, 2015), aff’g No.
16 A201 295 610 (Immig. Ct. N.Y. City Apr. 18, 2013). We assume
17 the parties‟ familiarity with the underlying facts and
18 procedural history in this case.
19 Given the circumstances of this case, we have considered
20 both the IJ‟s and the BIA‟s opinions “for the sake of
21 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
22 524, 528 (2d Cir. 2006). The applicable standards of review
23 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
2
1 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2 Under the REAL ID Act of 2005, the agency may, in light of
3 “the totality of the circumstances,” base an adverse
4 credibility determination on, inter alia, the plausibility of
5 an asylum applicant‟s account and inconsistencies in her
6 statements, “without regard to whether” those inconsistencies
7 go “to the heart of the applicant‟s claim . . . .” 8 U.S.C.
8 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165
9 (2d Cir. 2008). Under the “substantial evidence” standard of
10 review, “[w]e defer . . . to an IJ‟s credibility determination
11 unless, from the totality of the circumstances, it is plain that
12 no reasonable fact-finder could make such an adverse
13 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
14 The adverse credibility determination against Sun is
15 sound. The agency justifiably relied on the record of Sun‟s
16 credible fear interview. The record of the interview bore the
17 hallmarks of reliability: the questions and answers about Sun‟s
18 past harm and future fears were memorialized in a typewritten
19 document. A Mandarin interpreter was used. Sun testified
20 that she was “nervous” during the interview, but not that she
21 was confused by any questions asked. See Ming Zhang v. Holder,
3
1 585 F.3d 715, 724-25 (2d Cir. 2009) (requiring close scrutiny
2 of credible fear interviews, but deeming reliable one that was
3 typewritten, was conducted with an interpreter, demonstrated
4 that the interviewee understood the questions, and included
5 questions about past harm or fear of future harm).
6 We have advised that “adverse credibility determinations
7 based on „discrepancies‟ with a credible fear interview should
8 be examined with care to ensure that they are not arbitrary.”
9 Id. at 725. Here, the determination was not arbitrary. At her
10 credible fear interview, Sun was asked, “Who do you fear in the
11 People‟s Republic of China?” and “Do you believe the government
12 or anyone associated with the government of People‟s Republic
13 of China, would want to harm you for any reason?” She never
14 mentioned that she was caught distributing Falun Gong flyers,
15 arrested, detained for four days, beaten, and given meager food.
16 Contrary to Sun‟s argument, “[a]n inconsistency and an omission
17 are,” for the purposes of a credibility determination,
18 “functionally equivalent.” Xiu Xia Lin, 534 F.3d at 166 n.3.
19 And here, the omission was significant: the Falun Gong incident
20 was the crux of Sun‟s asylum claim.
21 The agency reasonably found that Sun‟s varying
4
1 explanations for the omission eroded her credibility further.
2 In her asylum statement, Sun wrote that her snakehead told her
3 not to mention the Falun Gong incident because, if she was sent
4 back to China, the government “would more stringently punish”
5 her for having revealed its repressive tactics. At the merits
6 hearing, she denied having written that passage and said that
7 “maybe back at that time,” when she wrote the statement, she
8 “was too nervous and made the mistake.” The agency was not
9 compelled to credit this explanation, which did nothing to
10 justify the original omission. Majidi v. Gonzales, 430 F.3d
11 77, 80 (2d Cir. 2005) (stating that the agency is not required
12 to credit an explanation that is merely plausible or possible).
13 And that initial explanation conflicted with the one Sun offered
14 at the merits hearing for her omission of the Falun Gong
15 incident: because she “didn‟t know the point of view here in
16 United States related to Falun Gong.”
17 The IJ justifiably found both of Sun‟s conflicting
18 explanations to be implausible. “[I]n assessing the
19 credibility of an asylum applicant‟s testimony, an IJ is
20 entitled to consider whether the applicant‟s story is
21 inherently implausible.” Wensheng Yan v. Mukasey, 509 F.3d 63,
5
1 66 (2d Cir. 2007). Such a finding cannot be based on “bald
2 speculation or caprice.” Zhou Yun Zhang v. INS, 386 F.3d 66,
3 74 (2d Cir. 2004) overruled on other grounds by Shi Liang Lin
4 v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007). But one
5 that is based on “speculation that inheres in inference is not
6 „bald‟ if the inference is made available to the factfinder by
7 record facts, or even a single fact, viewed in the light of
8 common sense and ordinary experience.” Siewe v. Gonzales, 480
9 F.3d 160, 168-69 (2d Cir. 2007). Here, common sense supports
10 the IJ‟s inference: it strains credulity that a snakehead would
11 instruct his charge not to divulge an incident of past
12 persecution, or that Sun would flee China based on that incident
13 without knowing whether it would be repeated in the United
14 States.
15 The agency also reasonably cited various inconsistencies
16 in Sun‟s account of the glass-throwing incident. At her
17 credible fear interview, Sun said she “beat up somebody,” later
18 clarifying that the “somebody” was the “staff of the government”
19 and that she “took a glass and broke it over the head,” and later
20 had to pay the “injured” person‟s medical expenses. At the
21 merits hearing, she denied hitting the village cadre with the
6
1 glass and suggested that she was falsely accused of injuring
2 him. In addition, at one point she gave the wrong date for the
3 incident (July rather than April). After being confronted with
4 these and other inconsistencies, Sun testified that she was
5 nervous at her credible fear interview (an explanation she
6 continues to press here). The agency was not compelled to
7 accept this explanation. Majidi, 430 F.3d at 80; see also Ming
8 Zhang, 585 F.3d at 725 (“We again reject the notion that a
9 petitioner‟s claim that she was nervous and distracted during
10 the credible fear interview automatically undermines or negates
11 its reliability as a source of her statements.”).
12 Given the omissions, inconsistencies, and
13 implausibilities that cast doubt on whether the critical
14 incident of alleged persecution occurred, the totality of the
15 circumstances supports the agency‟s adverse credibility
16 determination. Sun‟s applications for asylum, withholding of
17 removal, and CAT relief were based on the same factual
18 predicate, and so the adverse credibility determination was
19 dispositive as to all three. See Paul v. Gonzales, 444 F.3d
20 148, 156-57 (2d Cir. 2006).
21 For the foregoing reasons, the petition for review is
7
1 DENIED. As we have completed our review, any stay of removal
2 that the Court previously granted in this petition is VACATED,
3 and any pending motion for a stay of removal in this petition
4 is DISMISSED as moot. Any pending request for oral argument
5 in this petition is DENIED in accordance with Federal Rule of
6 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
7 34.1(b).
8 FOR THE COURT:
9 Catherine O=Hagan Wolfe, Clerk
8