Bai v. Lynch

14-4627
Bai v. Lynch
BIA
Christensen, IJ
A200 179 025
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.

At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
15th day of August, two thousand sixteen.

PRESENT:
GUIDO CALABRESI,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________

XUEJIN BAI,
Petitioner,

v. 14-4627
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________

FOR PETITIONER: Dehai Zhang, Esq., Flushing, New York.

FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; John S.
Hogan, Senior Litigation Counsel;
Nicole N. Murley, Trial Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
 UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

DENIED.

Petitioner Xuejin Bai, a native and citizen of the People’s

Republic of China, seeks review of a November 21, 2014 decision

of the BIA affirming a July 18, 2013 decision of an Immigration

Judge (“IJ”) denying Bai’s application for asylum, withholding

of removal, and relief under the Convention Against Torture

(“CAT”). See In re Xuejin Bai, No. A200 179 025 (B.I.A. Nov.

21, 2014), aff’g No. A200 179 025 (Immig. Ct. N.Y.C. July 18,

2013). Under the circumstances of this case, we review both

the IJ and the BIA opinion “for the sake of completeness,”

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

2006), applying well-established standards of review, see 8

U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

513 (2d Cir. 2009). In doing so, we assume the parties’

familiarity with the underlying facts and procedural history

in this case.

For asylum applications such as Bai’s, governed by the REAL

ID Act of 2005, the agency may, considering “the totality of

the circumstances,” base an adverse credibility determination

on an asylum applicant’s “demeanor, candor, or responsiveness,”

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the plausibility of her account, and inconsistencies in her

statements, “without regard to whether” those inconsistencies

go “to the heart of the applicant’s claim.” 8 U.S.C. §

1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d 162,

165 (2d Cir. 2008). Under the “substantial evidence” standard

of review, “[w]e defer to an IJ’s credibility determination

unless, from the totality of the circumstances, it is plain that

no reasonable fact-finder could make such an adverse

credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.

The agency here reasonably relied on inconsistencies,

omissions, and Bai’s demeanor in finding her not credible.

First, the record supports the agency’s conclusion that Bai’s

testimony regarding the number of passports she had obtained

was inconsistent. Although Bai initially testified that she

had only had one passport in her life — the one that she used

to travel to the United States — the record indicates that she

had at least three. She conceded during her testimony that,

in 2009, she obtained a passport bearing a false name and her

picture, which she used to travel successfully to Japan after

she was forced to have an abortion. Further, the passport she

used to travel to the United States stated that it was a

replacement, thus indicating that Bai previously had yet

another passport. Insofar as Bai attempts to minimize her

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testimony regarding the fraudulent passport she used to travel

to Japan, she did not raise that argument before the BIA and,

therefore, we decline to consider it here. See Lin Zhong v.

U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007)

(explaining that when “applicant for asylum or withholding of

removal has failed to exhaust an issue before the BIA, and that

issue is, therefore, not addressed in a reasoned BIA decision,”

we are, “by virtue of the ‘final order’ requirement of

§ 1252(d)(1), usually unable to review the argument”).

Second, the record also supports the agency’s conclusion

that Bai omitted from her asylum application any mention of the

six months she lived and worked in Japan in 2009. Bai testified

that in June 2009, approximately two months after she was forced

to have an abortion, she traveled to Japan and lived and worked

there for six months before being deported to China. Despite

completing an asylum application in 2011 that required her to

list her jobs and residences for the past five years and

providing with her application a written statement detailing

what happened after her forced abortion, Bai failed to include

in either document the fact that she lived and worked in Japan

from approximately June 2009 to December 2009. The IJ was

permitted to rely on this omission in assessing Bai’s

credibility, see Xiu Xia Lin, 534 F.3d at 166 n.3 (explaining

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that, for purposes of assessing credibility, “[a]n

inconsistency and an omission are . . . functionally

equivalent”), particularly given that Bai’s only explanation

for this omission was that she felt “that if [she] include[d]

it, it’s not good” because she also went to Japan to apply for

asylum, Certified Administrative Record (“CAR”) 83; see Majidi

v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (stating that

petitioner “must do more than offer a plausible explanation for

[her] inconsistent statements to secure relief; [s]he must

demonstrate that a reasonable fact-finder would be compelled

to credit [her] testimony”).

In urging otherwise, Bai relies on a pre-REAL ID Act case

to argue that her testimony regarding her time in Japan could

not form the basis for the agency’s credibility determination

because it had no bearing on her claim that she suffered

persecution in China. See Secaida-Rosales v. INS, 331 F.3d

297, 308 (2d Cir. 2003) (stating that adverse credibility

determination cannot rest on inconsistencies that “do not

concern the basis for the claim of asylum or withholding, but

rather matters collateral or ancillary to the claim”). The

argument fails because the REAL ID Act governs Bai’s

application, and permits an IJ to “rely on any inconsistency

or omission in making an adverse credibility determination as

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long as the ‘totality of the circumstances’ establishes that

an asylum applicant is not credible.” Xiu Xia Lin, 534 F.3d

at 167 (emphasis in original) (quoting 8 U.S.C.

§ 1158(b)(1)(B)(iii)) (concluding that REAL ID Act abrogated

circuit precedent, including Secaida-Rosales, which held that

IJ may not base adverse credibility determination on

inconsistencies that are collateral to applicant’s claim).

Third, the agency reasonably concluded that Bai testified

inconsistently about her divorce. Although Bai initially

testified that she was in China when she divorced her husband,

she subsequently testified that the divorce took place in

December 2009, when she was in Japan. When asked to explain

this inconsistency, Bai stated that she had been asked “too many

questions,” and ”got confused.” CAR 84. The agency was not

compelled to credit this explanation. See Majidi, 430 F.3d at

80.1

Fourth, the IJ also expressed doubts about Bai’s demeanor

— a finding that we accord deference given that an IJ is in the

1
Bai further argues in her brief to this court that she was
confused as to whether the government was asking about the
beginning or end of the divorce process. She did not, however,
provide that explanation when asked about the inconsistency
before the IJ, see Kulhawik v. Holder, 571 F.3d 296, 298 (2d
Cir. 2009) (“An attorney’s unsworn statements in a brief are
not evidence.”), and, even if she had provided such an
explanation at that time, the agency would not have been
compelled to credit it, see Majidi, 430 F.3d at 80.
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best position to observe an applicant’s demeanor while

testifying. See Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 73-74

(2d Cir. 2004), overruled on other grounds by Shi Liang Lin v.

U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007). The IJ here

observed that Bai was “evasive” when asked about the number of

passports she has had in her life. CAR 48. This finding is

strengthened by Bai’s inconsistent responses to that question.

See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d

Cir. 2006) (“We can be still more confident in our review of

observations about an applicant’s demeanor where, as here, they

are supported by specific examples of inconsistent

testimony.”).

Finally, the agency reasonably found that Bai failed to

rehabilitate her testimony with reliable documents. See Biao

Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An

applicant’s failure to corroborate his or her testimony may bear

on credibility, because the absence of corroboration in general

makes an applicant unable to rehabilitate testimony that has

already been called into question.”). In so concluding, the

IJ declined to afford significant evidentiary weight to (1) a

letter from Bai’s mother because she was unavailable for

cross-examination; and (2) an unauthenticated hospital record

that did not establish that Bai’s 2009 abortion was involuntary,

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see Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006) (noting

that the State Department China Profile of Asylum Cases states

“so-called ‘abortion certificates’ are most likely doctors’

excuse-letters for workers who undergo abortion voluntarily”).

We defer to the agency’s determination of the weight to be

afforded to these documents. See Y.C. v. Holder, 741 F.3d 324,

332 (2d Cir. 2013) (deferring to agency’s determination to give

letter “very little evidentiary weight” where letter was

unsworn and submitted by an interested witness).

Because substantial evidence supports the agency’s

findings that Bai provided inconsistent testimony, omitted

facts from her asylum application, and was evasive during her

testimony, we identify no basis to disturb the agency’s adverse

credibility determination, see 8 U.S.C. § 1158(b)(1)(B)(iii);

Xiu Xia Lin, 534 F.3d at 167, which is dispositive of Bai’s

claims for asylum, withholding of removal, and CAT relief, see

Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).2

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

2
Because the IJ’s credibility determination was an independent
basis on which to deny Bai’s requested relief, we need not
consider whether the agency erred in concluding that Bai failed
to establish her identity. See Cao He Lin v. U.S. Dep’t of
Justice, 428 F.3d 391, 401 (2d Cir. 2005).
8
and any pending motion for a stay of removal in this petition

is DISMISSED as moot. Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk

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