15-2368
Shen v. Lynch
BIA
Nelson, IJ
A200 173 943
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 31st day of August, two thousand sixteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 SONGSHU SHEN,
14 Petitioner,
15
16 v. 15-2368
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: David A. Bredin, Flushing, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Anthony
27 P. Nicastro, Acting Assistant
28 Director; Vanessa M. Otero, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Songshu Shen, a native and citizen of the
6 People’s Republic of China, seeks review of a June 26, 2015,
7 decision of the BIA, affirming a November 20, 2013, decision
8 of an Immigration Judge (“IJ”) denying Shen’s application for
9 asylum, withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Songshu Shen, No. A200 173 943
11 (B.I.A. June 26, 2015), aff’g No. A200 173 943 (Immig. Ct. N.Y.
12 City Nov. 20, 2013). We assume the parties’ familiarity with
13 the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we review the IJ’s
15 decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t
16 of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
17 standards of review are well established. 8 U.S.C.
18 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
19 (2d Cir. 2008).
20 For asylum applications like Shen’s, governed by the REAL
21 ID Act, the agency may, “[c]onsidering the totality of the
2
1 circumstances,” base a credibility finding on an asylum
2 applicant’s “demeanor, candor, or responsiveness,” and
3 inconsistencies in her or her witness’s statements, “without
4 regard to whether” those inconsistencies go “to the heart of
5 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
6 Xia Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s
7 credibility determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder could
9 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
10 at 167. As discussed below, substantial evidence supports the
11 adverse credibility determination.
12 The agency reasonably rested its adverse credibility
13 determination on omissions from Shen’s application concerning
14 the only incident of persecution she alleged. Id. at 166-67
15 & n.3 (“An inconsistency and an omission are . . . functionally
16 equivalent” for credibility purposes). Shen testified that a
17 police officer smashed a book on her head and five other inmates
18 beat her while detained. When asked why her application
19 omitted these details, Shen responded that she considered being
20 hit with the book less serious than what she had included in
21 her application and that being beaten by the other inmates was
3
1 too “horrible for [her] to even recall.” The agency, however,
2 was not required to credit Shen’s explanations. See Majidi v.
3 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
4 do more than offer a plausible explanation for his inconsistent
5 statements to secure relief; he must demonstrate that a
6 reasonable fact-finder would be compelled to credit his
7 testimony.” (internal quotation marks and citation omitted)).
8 The agency also did not err in concluding that Shen’s
9 corroborating evidence was insufficient to rehabilitate her
10 credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
11 Cir. 2007) (recognizing that “[a]n applicant’s failure to
12 corroborate his . . . testimony may bear on credibility,
13 because the absence of corroboration in general makes an
14 applicant unable to rehabilitate testimony that has already
15 been called into question” or is viewed as suspicious). The
16 agency reasonably gave diminished weight to Shen’s mother’s
17 letter: it was inconsistent with Shen’s testimony concerning
18 when Shen started attending church in China, not notarized, and
19 from an interested witness not subject to cross examination.
20 See Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A.
21 2010), rev’d on other grounds by Hui Lin Huang v. Holder, 677
4
1 F.3d 130 (2d Cir. 2012); see also Y.C. v. Holder, 741 F.3d 324,
2 334 (2d Cir. 2013). The agency also reasonably found
3 suspicious the absence of any testimony or statement from Shen’s
4 husband. See Biao Yang, 496 F.3d at 273. Although Shen
5 explained that her husband could not miss work and that she
6 believed only persons with legal status could testify, this did
7 not account for the absence of a statement. Cf. 8
8 U.S.C. § 1252(b)(4) (“No court shall reverse a determination
9 made by a trier of fact with respect to the availability of
10 corroborating evidence . . . [unless] a reasonable trier of
11 fact is compelled to conclude that such corroborating evidence
12 is unavailable.”).
13 Given the foregoing omissions and Shen’s insufficient
14 corroborating evidence, the totality of the circumstances
15 supports the credibility ruling. Xiu Xia Lin, 534 F.3d at 167.
16 The omissions relate to substantial aspects of the sole incident
17 of past alleged persecution. Because Shen’s claims for relief
18 were based on the same factual predicate, the adverse
19 credibility determination is dispositive of asylum,
20 withholding of removal, and CAT relief. Paul v. Gonzales, 444
21 F.3d 148, 156-57 (2d Cir. 2006).
5
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
6