Jian Ying Wu v. Sessions

16-1084 Wu v. Sessions BIA Segal, IJ A200 283 647 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 23rd day of June, two thousand seventeen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 BARRINGTON D. PARKER, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 JIAN YING WU, 14 Petitioner, 15 16 v. 16-1084 17 NAC 18 JEFFERSON B. SESSIONS III, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Michael Brown, New York, NY. 24 25 FOR RESPONDENT: Joyce R. Branda, Acting Assistant 26 Attorney General; Stephen J. Flynn, 27 Assistant Director; Jeffrey R. 28 Meyer, Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 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 Jian Ying Wu, a native and citizen of the 6 People’s Republic of China, seeks review of a March 23, 2016, 7 decision of the BIA, affirming a July 3, 2014, decision of an 8 Immigration Judge (“IJ”) denying Wu’s application for asylum, 9 withholding of removal, and relief under the Convention Against 10 Torture (“CAT”). In re Jian Ying Wu, No. A200 283 647 (B.I.A. 11 Mar. 23, 2016), aff’g No. A200 283 647 (Immig. Ct. N.Y. City 12 July 3, 2014). We assume the parties’ familiarity with the 13 underlying facts and procedural history in this case. 14 Under the circumstances of this case, we have reviewed both 15 the IJ’s and the BIA’s opinions “for the sake of completeness.” 16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 17 2006). The applicable standards of review are well 18 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 19 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 20 For asylum applications like Wu’s, governed by the REAL ID 21 Act, the agency may, “[c]onsidering the totality of the 2 1 circumstances,” base a credibility finding on inconsistencies 2 in an applicant’s and her witness’s statements, “without regard 3 to whether” those inconsistencies go “to the heart of the 4 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 5 Lin, 534 F.3d at 163-64, 167. “We defer . . . to an IJ’s 6 credibility determination unless, from the totality of the 7 circumstances, it is plain that no reasonable fact-finder could 8 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d 9 at 167. Substantial evidence supports the adverse credibility 10 determination in this case. 11 Wu testified that, on one occasion in 2014, she and her 12 husband visited her witness Ye Qing’s home and that she met 13 Qing’s wife. This conflicted both with Wu’s husband’s 14 testimony (he denied meeting Qing’s wife) and Qing’s testimony 15 (he and his wife divorced in 2001 and he lived only with his 16 child). The agency reasonably concluded that this “blaringly 17 inconsistent” testimony could not be rectified with an 18 explanation. Cf. Ming Shi Xue v. BIA, 439 F.3d 111, 122, n.13 19 & 125 (2d Cir. 2006) (where the “inconsistency is ‘dramatic’ 20 or obvious on its face . . . the petitioner can be assumed to 21 be aware-without being told-of the need to explain it”). And 3 1 Wu’s current explanation—that she assumed the woman she met at 2 Qing’s home was his wife—does not compel a contrary conclusion: 3 neither Wu’s husband nor Qing testified that a woman was present 4 during that visit. Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 5 2005) (“A petitioner must do more than offer a plausible 6 explanation for h[er] inconsistent statements to secure relief; 7 he must demonstrate that a reasonable fact-finder would be 8 compelled to credit h[er] testimony.” (quoting Zhou Yun Zhang 9 v. U.S. INS, 386 F.3d 77, 76 (2d Cir. 2004))). 10 The agency also reasonably relied on inconsistencies 11 concerning the last time Wu, her husband, and Qing dined 12 together. Wu’s husband testified that they last saw each other 13 for breakfast two days before the merits hearing. But Qing 14 testified that they last dined together more than a month 15 earlier and emphasized that he had not seen Wu or her husband 16 since that date. When asked to reconcile this testimony, Qing 17 tried to explain away the more recent meeting, stating that they 18 “bumped into each other on the street” and decided to go to 19 breakfast on a whim. The agency reasonably concluded that this 20 was not “a persuasive explanation” for the inconsistency 21 because it did not resolve Qing’s initial testimony that he had 4 1 not seen Wu and her husband in over a month. See Majidi, 430 2 F.3d at 80. Wu’s current explanation that Qing and her husband 3 “were describing two separate incidents” similarly misses the 4 mark because it also does not resolve when they last saw each 5 other. See id. 6 The agency also reasonably relied on Wu’s husband’s 7 internally inconsistent testimony. See 8 U.S.C. 8 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Wu’s 9 husband testified that he worked in Queens, detailing his drive 10 there from his home in Brooklyn. But when confronted with a 11 copy of his W-2, listing an employer in Manhattan, he changed 12 his testimony, denied ever working in Queens, and gave reasons 13 why he commuted to Manhattan by bus, rather than driving. The 14 IJ was not compelled to accept Wu’s husband’s explanation—that 15 his accountant was in Queens—because he was asked how he got 16 to work, not how he got to his accountant’s office. See Majidi, 17 430 F.3d at 80. 18 Wu now argues that it was error for the IJ to rely on this 19 inconsistency given her husband’s testimony “that he does not 20 have one stable job.” While it is true that Wu’s husband 21 testified that he had worked as a cook in Maryland and traveled 5 1 back and forth to New York, this explanation again misses the 2 mark because the inconsistency concerned Wu’s husband’s 3 testimony about his work in New York. See Majidi, 430 F.3d at 4 80. 5 While seemingly minor, these inconsistencies taken 6 together are significant, because they call into question Wu’s 7 relationship with Qing and, thus, whether Qing actually 8 witnessed Wu practicing Falun Gong. That, in turn, calls into 9 question whether Wu practices Falun Gong and thus whether she 10 was ever harmed in China on that basis. See Siewe v. Gonzales, 11 480 F.3d 160, 170 (2d Cir. 2007) (finding that “where an IJ’s 12 finding of fabrication (supported by substantial evidence) 13 serves as the basis for discrediting other evidence, a reviewing 14 court is in no position to conclude that the discrediting of 15 the remaining evidence is unsupported by substantial 16 evidence”). 17 Given these inconsistencies, which undermined Wu’s 18 credibility, it cannot be said “that no reasonable fact-finder 19 could make such an adverse credibility ruling.” Xiu Xia Lin, 20 534 F.3d at 167; see also Siewe, 480 F.3d at 170. The adverse 21 credibility determination is dispositive of asylum, 6 1 withholding of removal, and CAT relief because all three forms 2 of relief are based on the same factual predicate. Paul v. 3 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 4 For the foregoing reasons, the petition for review is 5 DENIED. Because we have completed our review, Wu’s pending 6 motion for a stay of removal is DENIED as moot. Any pending 7 request for oral argument in this petition is DENIED in 8 accordance with Federal Rule of Appellate Procedure 34(a)(2), 9 and Second Circuit Local Rule 34.1(b). 10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 7