15-4128
Tian v. Sessions
BIA
Poczter, IJ
A205 825 148
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 7th day of April, two thousand seventeen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 LI GUO TIAN,
14 Petitioner,
15
16 v. 15-4128
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Michael Brown, New York, NY.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Anthony
28 P. Nicastro, Assistant Director;
29 Jonathan Robbins, Senior Litigation
30 Counsel, Office of Immigration
31 Litigation, U.S. Department of
32 Justice, Washington, DC.
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 Li Guo Tian, a native and citizen of the People’s
6 Republic of China, seeks review of a December 10, 2015, decision
7 of the BIA affirming an August 20, 2014, decision of an
8 Immigration Judge (“IJ”) denying Tian’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Li Guo Tian, No. A205 825 148 (B.I.A.
11 Dec. 10, 2015), aff’g No. A205 825 148 (Immig. Ct. N.Y. City
12 Aug. 20, 2014). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 We have reviewed “the IJ’s decision as modified by the BIA.”
15 Lianping Li v. Lynch, 839 F.3d 144, 148 (2d Cir. 2016). The
16 applicable standards of review are well established. See 8
17 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
18 513 (2d Cir. 2009).
19 Under the REAL ID Act of 2005, the agency may, in light of
20 “the totality of the circumstances,” base an adverse
21 credibility determination on inconsistencies in an applicant’s
22 statements. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v.
23 Mukasey, 534 F.3d 162, 165 (2d Cir. 2008). A single
2
1 inconsistency or omission that goes to the heart of a claim can
2 support an adverse credibility finding. See, e.g., Xian Tuan
3 Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 294-95 (2d Cir.
4 2006). Applying the “substantial evidence” standard of
5 review, “we defer . . . to an IJ’s credibility determination
6 unless, from the totality of the circumstances, it is plain that
7 no reasonable fact-finder could make such an adverse
8 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
9 The ruling against Tian was sound. His asylum application
10 and testimony conflicted on a central point: his location when
11 his wife was seized for her second forced abortion. His asylum
12 application said that his wife was taken from a relative’s home
13 for a forced abortion and then returned to her home village,
14 and that, when Tian was rushing home after hearing the news,
15 he was spotted by family planning cadres who beat him and then
16 left. By contrast, he testified that he and his wife were home
17 together and were both taken to the hospital, where she was
18 forced to have an abortion and he was beaten and detained for
19 two days. “Drawing inferences from direct and circumstantial
20 evidence is a routine and necessary task of any factfinder.”
21 Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007). Based
22 on Tian’s differing descriptions of his own whereabouts and his
23 beating and detention, a critical juncture of his alleged past
3
1 persecution, the IJ was entitled to discredit Tian’s testimony.
2 Xian Tuan Ye, 446 F.3d at 294-95.
3 Tian characterizes the adverse credibility determination
4 as unfair, asserting that he was not given a chance to explain,
5 but the record reflects otherwise. Moreover, Tian’s
6 explanations were not compelling. Majidi v. Gonzales, 430 F.3d
7 77, 80 (2d Cir. 2005) (explaining that the agency is not required
8 to credit an explanation that is merely plausible or possible).
9 Tian explained that he was captured by the cadres while he was
10 en route to the relative’s house. Rather than clarifying the
11 sequence, these explanations muddled it: When his wife was
12 captured, was Tian on his way home, on his way to the relative’s
13 house, with his wife at the relative’s house, or in his home
14 village? Tian asks us to remand for the agency to credit a bit
15 of all those options; but on a petition for review, our task
16 is not to supplant the agency’s judgment. Xiao Ji Chen v. U.S.
17 Dep’t of Justice, 471 F.3d 315, 334–35 (2d Cir. 2006) (“[O]ur
18 limited role as an appellate court does not permit us to engage
19 in an independent evaluation of the cold record or ask ourselves
20 whether, if we were sitting as fact-finders in the first
21 instance, we would credit or discredit an applicant’s
22 testimony.”).
4
1 Tian also challenges the agency’s decision to give
2 diminished weight to the family planning committee document he
3 submitted, questioning why it was wrong to procure it for his
4 claim, and noting that there are different ways to authenticate
5 a document aside from the one laid out in agency regulations.
6 The IJ discounted the document on the ground that it was not
7 authenticated pursuant to an agency regulation, 8 C.F.R.
8 § 287.6(b). We have deemed that reason to be insufficient.
9 Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404–05 (2d
10 Cir. 2005) (finding “that the IJ erred by rejecting the notarial
11 birth certificate based on Cao’s failure to authenticate it
12 pursuant to ‘regulation’”). On the other hand, we give the
13 agency “considerable flexibility in determining the
14 authenticity of . . . documents from the totality of the evidence
15 and in using documents found to be authentic in making an overall
16 assessment of the credibility of a petitioner’s testimony and,
17 ultimately, of [his] persecution claim.” Shunfu Li v. Mukasey,
18 529 F.3d 141, 149 (2d Cir. 2008). The agency decision under
19 review--that of the BIA--questioned Tian’s document for reasons
20 beyond regulatory authentication: it was unauthenticated by any
21 means, unsigned, and obtained for purposes of the litigation.
22 That was no abuse of discretion. Matter of H-L-H- & Z-Y-Z-,
23 25 I. & N. Dec. 209, 214 (B.I.A. 2010) (discounting village
5
1 committee documents that “were obtained for the purpose of the
2 hearing, are unsigned and unauthenticated and fail to even
3 identify the authors,” and acknowledging that the regulation
4 “does not provide the exclusive means for authenticating
5 documents in immigration proceedings”), remanded on other
6 grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012);
7 see also Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)
8 (“[A] single false document or a single instance of false
9 testimony may (if attributable to the petitioner) infect the
10 balance of the alien’s uncorroborated or unauthenticated
11 evidence.”). The document reflected that Tian’s wife had two
12 abortions, which could not serve as a basis for Tian to get
13 asylum. Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296,
14 299–300 (2d Cir. 2007). Even if credited, the document would
15 not cure the core inconsistency in Tian’s testimony about when,
16 where, and for how long he allegedly suffered harm.
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of removal
19 that the Court previously granted in this petition is VACATED,
20 and any pending motion for a stay of removal in this petition
21 is DISMISSED as moot. Any pending request for oral argument
22 in this petition is DENIED in accordance with Federal Rule of
6
1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
2 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
7