16-103
Li v. Sessions
BIA
Zagzoug, IJ
A205 028 792
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
2nd day of May, two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RICHARD C. WESLEY,
DENNY CHIN,
Circuit Judges.
_____________________________________
GUOWEI LI,
Petitioner,
v. 16-103
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jim Li, Flushing, NY.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Jeffery
R. Leist, Senior Litigation Counsel;
Sarah K. Pergolizzi, Trial Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, DC.
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 Guowei Li, a native and citizen of the People’s
Republic of China, seeks review of a December 17, 2015, decision
of the BIA affirming an April 10, 2014, decision of an
Immigration Judge (“IJ”) denying Li’s application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Guowei Li, No. A205 028 792 (B.I.A. Dec.
17, 2015), aff’g No. A205 028 792 (Immig. Ct. N.Y. City Apr.
10, 2014). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed both
the BIA’s and IJ’s decisions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (reviewing adverse
credibility determination for substantial evidence). The
agency may, “[c]onsidering the totality of the circumstances,”
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base a credibility finding on an asylum applicant’s “demeanor,
candor, or responsiveness,” the plausibility of his account,
and inconsistencies or omissions in his testimony and
documentary evidence, “without regard to whether” any
discrepancy “goes to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d
at 163-64, 167. “We defer . . . to an IJ’s credibility
determination unless . . . 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’s determination that
Li was not credible is supported by substantial evidence,
especially the change in Li’s demeanor and responsiveness on
cross-examination and the omission of his 2007 arrest and
beating from a letter submitted by his father.
We defer to the IJ’s assessment of Li’s demeanor because
“[a] fact-finder who assesses testimony together with witness
demeanor is in the best position to discern, often at a glance,
whether a question that may appear poorly worded on a printed
page was, in fact, confusing or well understood by those who
heard it [or] whether a witness who hesitated in a response was
nevertheless attempting truthfully to recount what he recalled
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of key events or struggling to remember the lines of a carefully
crafted ‘script’. . . .” Majidi v. Gonzales, 430 F.3d 77, 81
n.1 (2d Cir. 2005) (quoting Zhang v. U.S. INS, 386 F.3d 66, 73
(2d Cir. 2004)). Moreover, the record supports the IJ’s
determination that Li’s demeanor changed dramatically on
cross-examination. Cf. 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.”). On direct examination, Li gave detailed
testimony and was asked to pause several times so that his
answers could be interpreted. On cross-examination, however,
he was unable to remember basic dates and events and asked for
questions to be repeated several times.
The omission of the 2007 home demolition and Li’s arrest
and beating from Li’s father’s letter also provides substantial
support for the adverse credibility determination. See Xiu Xia
Lin, 534 F.3d 166 n.3 (noting that “[a]n inconsistency and an
omission are . . . functionally equivalent” for credibility
purposes); Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 294-95
(2d Cir. 2006) (noting that even one material inconsistency or
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omission relating to the persecution from which an applicant
sought asylum may provide substantial evidence for an adverse
credibility determination). Li included the events from 2007
on his asylum application as a basis for a claim of past
persecution and testified in detail about them, but his father’s
letter omitted any mention of the demolition, arrest, or
beating. Li had no explanation for the omission, and contrary
to Li’s position, an omission by a third party may be a valid
ground for an adverse credibility determination. See Xiu Xia
Lin, 534 F.3d at 167 (finding that omission in friend’s letter
supported adverse credibility determination).
The agency also reasonably concluded that Li’s
corroborating evidence was insufficient to rehabilitate his
credibility or independently meet his burden of proof. 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”). Li did not provide any
documentation corroborating the medical treatment he claimed
he received following his 2007 arrest and beating. His
5
explanation that the Chinese government would not document the
incident does not explain why he could not have obtained
hospital records regarding his treatment. See 8 U.S.C.
§ 1252(b)(4)(“No court shall reverse a determination made by
a trier of fact with respect to the availability of
corroborating evidence . . . unless the court finds . . . that
a reasonable trier of fact is compelled to conclude that such
corroborating evidence is unavailable.”).
Given Li’s change in demeanor and responsiveness, his
father’s omission of the 2007 events, and the lack of
rehabilitative corroborating evidence, the totality of the
circumstances supports the agency’s adverse credibility
determination. The adverse credibility determination is
dispositive of all of Li’s claims for relief from removal. See
Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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