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