Gengmian Li v. Lynch

14-1949 Li v. Lynch BIA Zagzoug, IJ A200 753 606 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 11th day of May, two thousand sixteen. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 ROBERT D. SACK, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 GENGMIAN LI, 14 Petitioner, 15 16 v. 14-1949 17 NAC 18 19 LORETTA E. LYNCH, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: James A. Lombardi, New York, New 25 York. 26 27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 28 Assistant Attorney General; John S. 1 Hogan, Assistant Director; Matthew 2 A. Spurlock, Trial Attorney, Office 3 of Immigration Litigation, United 4 States Department of Justice, 5 Washington, D.C. 6 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review is 10 DENIED. 11 Petitioner Gengmian Li, a native and citizen of the 12 People’s Republic of China, seeks review of a May 28, 2014, 13 decision of the BIA affirming a March 15, 2012, decision of an 14 Immigration Judge (“IJ”) denying Li’s application for asylum, 15 withholding of removal, and relief under the Convention Against 16 Torture (“CAT”). In re Gengmian Li, No. A200 753 606 (B.I.A. 17 May 28, 2014), aff’g No. A200 753 606 (Immig. Ct. N.Y. City Mar. 18 15, 2012). We assume the parties’ familiarity with the 19 underlying facts and procedural history in this case. 20 Under the circumstances of this case, we have reviewed the 21 IJ’s decision as modified by the BIA, i.e., minus the basis for 22 denying relief that the BIA declined to consider (the IJ’s 23 burden finding as to CAT relief). See Xue Hong Yang v. U.S. 24 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The 25 applicable standards of review are well established. See 2 1 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 2 F.3d 162, 165-66 (2d Cir. 2008). 3 The agency may, “[c]onsidering the totality of the 4 circumstances, . . . base a credibility determination on the 5 demeanor, candor, or responsiveness of the applicant,” the 6 plausibility of the applicant’s account, and the consistency 7 in the applicant’s statements “without regard to whether an 8 inconsistency . . . goes to the heart of the applicant’s claim.” 9 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. 10 Substantial evidence supports the agency’s determination that 11 Li was not credible and failed to adequately corroborate her 12 claims. 13 Li sought asylum and related relief based on her alleged 14 forced abortion under China’s family planning policy in 1990 15 and her practice of Christianity. In finding her not credible, 16 the IJ reasonably relied on Li’s demeanor, noting that her 17 testimony became evasive and unresponsive on 18 cross-examination. See 8 U.S.C. § 1158(b)(1)(B)(iii); see 19 also Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005). 20 That finding is supported by the record. 21 Having questioned Li’s credibility, the agency reasonably 22 relied further on her failure to submit corroborating evidence 3 1 sufficient to rehabilitate her testimony or independently 2 satisfy her burden of proof. See Biao Yang v. Gonzales, 496 3 F.3d 268, 273 (2d Cir. 2007); Diallo v. INS, 232 F.3d 279, 285 4 (2d Cir. 2000). The agency reasonably declined to credit 5 letters from Li’s husband, pastor, and fellow church member in 6 China because the letters were unsworn and prepared for 7 litigation, and the authors were not available for 8 cross-examination. See Y.C. v. Holder, 741 F.3d 324, 332, 334 9 (2d Cir. 2013). 10 Moreover, although Li claimed to have had access to 11 corroborating evidence that was contemporaneous with her 12 alleged forced abortion, family planning checkups, and 13 religious practice in China (books and other religious 14 materials), she did not submit that evidence before the IJ, 15 claiming either that it was lost or that it remained with her 16 husband in China. See Chuilu Liu v. Holder, 575 F.3d 193, 17 196-97 (2d Cir. 2009) (recognizing that an IJ may require 18 corroborating evidence when it is reasonably available and it 19 would be expected under the circumstances). In addition, the 20 agency did not err in declining to credit an unauthenticated 21 fine receipt as corroboration of Lin’s purported detention. 22 The agency correctly acknowledged that an official document may 4 1 be authenticated by means other than those described in the 2 agency’s regulations at 8 C.F.R. § 1287.6, and reasonably 3 determined that Li’s testimony, which was inconsistent as to 4 whether her husband signed the fine receipt, was insufficient 5 to authenticate that document. See Cao He Lin v. U.S. Dep’t 6 of Justice, 428 F.3d 391, 404-05 (2d Cir. 2005); see also Qin 7 Wen Zheng v. Gonzales, 500 F.3d 143, 148 (2d Cir. 2007) 8 (providing—in the context of a motion to reopen—that the agency 9 may decline to credit the authenticity of a government-issued 10 document based on legitimate credibility concerns). The 11 agency also reasonably relied on Li’s failure to provide 12 corroborating testimony from one of the approximately 1,000 13 congregants at her church in the United States after she learned 14 more than one month prior to her merits hearing that her intended 15 witness could not attend. See Chuilu Liu, 575 F.3d at 196-99. 16 The agency also reasonably found that the country 17 conditions evidence did not corroborate or independently 18 establish a well-founded fear of persecution. See 8 C.F.R. 19 § 1208.13(b)(2); see also Ramsameachire v. Ashcroft, 357 F.3d 20 169, 178 (2d Cir. 2004). The 2009 U.S. Department of State 21 International Religious Freedom Report (“IRF Report”) provides 22 that there are 50 to 70 million Christians practicing in 5 1 unregistered churches in China and that family and friends are 2 permitted to meet in homes for worship. As the agency 3 acknowledged, there are reports that the Chinese government 4 arrested, harassed, and restricted leaders and members of 5 certain groups (particularly Muslims in the Xinjiang Uighur 6 Autonomous Region and Buddhists in Tibetan areas). However, 7 the extent of government interference depended largely on 8 locale, and most unregistered Christian groups were openly 9 active. 10 Ultimately, substantial evidence supports the agency’s 11 finding that Li’s testimony lacked credibility and that her 12 evidence was insufficient to rehabilitate her testimony or 13 independently satisfy her burden of proof. See Xiu Xia Lin, 14 534 F.3d at 165-66; Chuilu Liu, 575 F.3d at 198-99. Those 15 findings are dispositive of asylum and withholding of removal 16 based on both her claim of past persecution and her fear of 17 future persecution. See Paul v. Gonzales, 444 F.3d 148, 156-57 18 (2d Cir. 2006). 19 For the foregoing reasons, the petition for review is 20 DENIED. As we have completed our review, any stay of removal 21 that the Court previously granted in this petition is VACATED, 22 and any pending motion for a stay of removal in this petition 6 1 is DISMISSED as moot. Any pending request for oral argument 2 in this petition is DENIED in accordance with Federal Rule of 3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 4 34.1(b). 5 FOR THE COURT: 6 Catherine O=Hagan Wolfe, Clerk 7