15-3205
Li v. Sessions
BIA
Poczter, IJ
A200 177 895
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
28th day of July, two thousand seventeen.
PRESENT:
GUIDO CALABRESI,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
XIANGMEI LI,
Petitioner,
v. 15-3205
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Wei Gu, Whitestone, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Douglas
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Sessions is automatically substituted for
former Attorney General Loretta E. Lynch as Respondent.
E. Ginsburg, Assistant Director;
Erik R. Quick, 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 Xiangmei Li, a native and citizen of the
People’s Republic of China, seeks review of a September 16, 2015
decision of the BIA, affirming a May 27, 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 Xiangmei Li, No. A200 177 895 (B.I.A.
Sept. 16, 2015), aff’g No. A200 177 895 (Immig. Ct. N.Y. City
May 27, 2014).
Under the circumstances of this case, we review the IJ’s
decision as modified by the BIA, see Xue Hong Yang v. U.S. Dep’t
of Justice, 426 F.3d 520, 522 (2d Cir. 2005), and address only
the adverse credibility determination, applying
well-established standards of review, 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
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substantial evidence). In doing so, we assume the parties’
familiarity with the underlying facts and procedural history
of the case.
For applications such as Li’s, governed by the REAL ID Act
of 2005, the agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of her account, and inconsistencies in her
statements and other record evidence “without regard to
whether” the inconsistencies go “to the heart of the applicant’s
claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d
at 163-64. “We 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. Further,
“[a] 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.” Majidi v. Gonzales, 430 F.3d 77,
80 (2d Cir. 2005) (emphasis in original) (internal quotation
marks and citations omitted). By these standards, the agency’s
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adverse credibility determination is supported by substantial
evidence.
Because Li claims that she was persecuted for owning a
satellite television receiver, the IJ reasonably relied on the
inconsistency between Li’s statements and documentary evidence
concerning the installation of that receiver. 8 U.S.C.
§ 1158(b)(1)(B)(iii). Specifically, Li’s testimony and
application state that her friend, Shun Hee, obtained and
installed the receiver at her request, and that her husband had
nothing to do with it. But her husband’s letter reflects that
his friend installed the receiver for him because he thought
it would help with Li’s depression, and that he knew it was
illegal. Li offered no explanation for this inconsistency
before the IJ. On appeal to the BIA and here, she asserts that
the correct translation of her husband’s letter was “a friend,”
not “his friend.” This alleged translation error is not,
however, an explanation that “a reasonable fact-finder would
be compelled to credit.” Majidi, 430 F.3d at 80 (emphasis in
original).
Additional support for the IJ’s adverse credibility
finding is found in the omission from her husband’s letter of
a purported verbal warning he received from the police when he
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paid the fine for Li’s release from detention. Xiu Xia Lin,
534 F.3d at 166 n.3 (“An inconsistency and an omission
are . . . functionally equivalent.”). Although Li explained
that the omission was attributable to her husband’s lack of
experience writing such letters and, in any event,
inconsequential, an IJ may rely on “any inconsistency or
omission in making an adverse credibility determination” and
was not required here to credit that explanation, given that
the letter recounted other threats. Xiu Xia Lin, 534 F.3d at
167 (emphasis in original); Majidi, 430 F.3d at 80.
The IJ also reasonably found aspects of Li’s claim to be
implausible. See Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d
Cir. 2007) (“[I]n assessing the credibility of an asylum
applicant’s testimony, an IJ is entitled to consider whether
the applicant’s story is inherently implausible.”). Li
testified that she alone was targeted for installing the
satellite television receiver in her home, despite the fact that
her husband also lived there and her mother owned the residence.
The IJ was not required to credit Li’s claim that, because she
was the primary television-watcher, the police had no interest
in questioning other family members. Majidi, 430 F.3d at 80.
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The IJ’s adverse credibility determination also reasonably
relied on the absence of corroborating evidence. “An
applicant’s failure to corroborate [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.” Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Li does not
challenge the corroboration rulings in her brief, thereby
abandoning the argument, see Yueqing Zhang v. Gonzales, 426 F.3d
540, 545 n.7 (2d Cir. 2005), but it would fail on the merits
in any event. Li did not provide a statement from the friend
who allegedly installed the receiver, despite submitting other
documentation from that individual. 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] a reasonable trier of fact is compelled
to conclude that such corroborating evidence is unavailable.”).
The IJ also deemed the other corroborating statements and
testimony upon which Li relied to be either conclusory or
irrelevant, an assessment to which we defer. See Y.C. v.
Holder, 741 F.3d 324, 332 (2d Cir. 2013).
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Given the inconsistencies, the implausible testimony, and
the lack of corroboration, it cannot be said “that no reasonable
fact-finder could make such an adverse credibility ruling.”
Xiu Xia Lin, 534 F.3d at 167. That finding is dispositive of
asylum, withholding of removal, and CAT relief because all three
forms of relief are based on the same factual predicate. 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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