16-3151
Yuan v. Barr
BIA
Schoppert, IJ
A205 196 828
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 16th day of April, two thousand nineteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12 GUISHENG YUAN,
13 Petitioner,
14
15 v. 16-3151
16 NAC
17 WILLIAM P. BARR, UNITED STATES
18 ATTORNEY GENERAL,
19 Respondent.
20 _____________________________________
21
22 FOR PETITIONER: Gerald Karikari, New York, NY.
23
24 FOR RESPONDENT: Chad A. Readler, Acting
25 Assistant Attorney General;
26 Jeffery R. Leist, Senior
27 Litigation Counsel; Sarah K.
28 Pergolizzi, Trial Attorney,
29 Office of Immigration
30 Litigation, United States
31 Department of Justice,
32 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
4 is DENIED.
5 Petitioner Guisheng Yuan, a native and citizen of China,
6 seeks review of the BIA’s affirmance of an Immigration Judge’s
7 (“IJ’s”) denial of Yuan’s application for asylum, withholding
8 of removal, and relief under the Convention Against Torture
9 (“CAT”). See In re Guisheng Yuan, No. A205 196 828 (B.I.A.
10 Aug. 15, 2016), aff’g No. A205 196 828 (Immig. Ct. N.Y. City
11 July 13, 2015).
12 Under the circumstances of this case, we have reviewed
13 both the IJ’s and the BIA’s decisions “for the sake of
14 completeness,” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
15 524, 528 (2d Cir. 2006), applying well established standards
16 of review, see 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
17 Sessions, 891 F.3d 67, 76 (2d Cir. 2018). In so doing, we
18 assume the parties’ familiarity with the underlying facts and
19 procedural history of this case, which we reference only as
20 necessary to explain our decision to deny the petition.
21 For an application such as Yuan’s, governed by the REAL
22 ID Act of 2005, the agency may “[c]onsider the totality of
2
1 the circumstances,” and base a credibility finding on an
2 applicant’s “demeanor, candor, or responsiveness,” the
3 plausibility of his account, and inconsistencies in his or
4 his witness’s statements, “without regard to whether” they go
5 “to the heart of [his] claim.” 8 U.S.C.
6 § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d
7 162, 163-64, 166-67 (2d Cir. 2008). “[E]ven where an IJ
8 relies on discrepancies or lacunae that, if taken separately,
9 concern matters collateral or ancillary to the claim, the
10 cumulative effect may nevertheless be deemed consequential by
11 the fact-finder.” Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d
12 Cir. 2006) (internal quotation marks and citation omitted);
13 accord Hong Fei Gao, 891 F.3d at 77. “We defer . . . to an
14 IJ’s credibility determination unless . . . it is plain that
15 no reasonable fact-finder could make such an adverse
16 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167; accord
17 Hong Fei Gao, 891 F.3d at 76. Applying these standards, we
18 conclude that substantial evidence supports the agency’s
19 adverse credibility determination here.
20 First, the agency reasonably relied on Yuan’s omission
21 from his asylum application of his sisters’ problems in China
22 on account of their religion since the application explicitly
3
1 requested that information. See Hong Fei Gao, 891 F.3d at 78
2 (“[T]he probative value of a witness’s . . . silence on
3 particular facts depends on whether those facts are ones the
4 witness would reasonably have been expected to disclose.”).
5 Because the application form specifically asked whether
6 family members experienced harm or mistreatment as members of
7 religious organizations, the agency did not err by rejecting
8 Yuan’s explanation that he did not include this information
9 because it was not the basis of his own claim. See Majidi v.
10 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
11 do more than offer a plausible explanation for his
12 inconsistent statements to secure relief; he must demonstrate
13 that a reasonable fact-finder would be compelled to credit
14 his testimony.” (internal quotation marks omitted)).
15 Moreover, as the IJ observed, Yuan’s sisters’ persecution on
16 the same ground on which Yuan claims to have been persecuted
17 would be relevant to establishing that the Chinese government
18 persecutes Christians in Yuan’s home region.
19 Second, the agency reasonably found Yuan’s ignorance of
20 his sisters’ religious practice and any harm they suffered in
21 China implausible, given that Yuan lived with his sisters for
22 most of his life, both sisters now live in the United States,
4
1 and Yuan and his sisters were the only Christians in their
2 family. See 8 U.S.C. § 1158(b)(1)(B)(iii); Wensheng Yan v.
3 Mukasey, 509 F.3d 63, 66-68 (2d Cir. 2007).
4 Third, the agency’s adverse credibility determination is
5 bolstered by the IJ’s observations of Yuan’s demeanor. See
6 8 U.S.C. § 1158(b)(1)(B)(iii); Jin Chen v. U.S. Dep’t of
7 Justice, 426 F.3d 104, 113 (2d Cir. 2005). The IJ’s finding
8 that Yuan’s testimony appeared scripted because his answers
9 were conclusory and lacked detail is supported by the record.
10 See Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 73 (2d Cir. 2004)
11 (recognizing that an IJ “who assesses testimony together with
12 witness demeanor is in the best position to discern, often at
13 a glance,. . . whether a witness . . . [is] attempting
14 truthfully to recount what he recalled of key events or
15 struggling to remember the lines of a carefully crafted
16 ‘script’”), overruled on other grounds by Shi Liang Lin v.
17 U.S. Dep’t of Justice, 494 F3d 296 (2d Cir. 2007).
18 Moreover, the agency reasonably found Yuan’s
19 corroborating evidence insufficient to rehabilitate his
20 credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273
21 (2d Cir. 2007) (“An applicant’s failure to corroborate his or
22 her testimony . . . in general makes an applicant unable to
5
1 rehabilitate testimony that has already been called into
2 question.”).1
3 Finally, the IJ reasonably declined to credit a
4 certificate from Yuan’s underground church in China, given
5 that it purported to be from an unregistered and secretive
6 organization but was printed on letterhead and contained
7 multiple seals and Yuan’s photograph. Yuan further did not
8 have detailed information on how his friend obtained the
9 letter. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
10 315, 342 (2d Cir. 2006) (observing that the weight accorded
11 to an applicant’s evidence “lie[s] largely within the
12 discretion of the IJ” (internal quotation marks omitted)).2
1Yuan did not exhaust a challenge to the IJ’s finding that
he should have provided statements or testimony from his
sisters, see Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
104, 122 (2d Cir. 2007), and the statements were available
given Yuan’s sisters’ presence in the United States, cf. 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.”).
2 Although the certificate did not rehabilitate Yuan’s
testimony, the agency erred in classifying the information
about Yuan’s arrests and detentions missing from the
certificate as an omission because Yuan explained that he
offered it only to show his church attendance. See Hong Fei
Gao, 891 F.3d at 81-82. However, because the other findings
provide substantial evidence for the adverse credibility
determination, we do not find remand necessary. See Xiao Ji
Chen, 471 F.3d at 339 (holding that remand is futile if we
6
1 In sum, the totality of the circumstances supports the
2 agency’s adverse credibility determination. See Xiu Xia Lin,
3 534 F.3d at 167. Contrary to Yuan’s position, the adverse
4 credibility determination extends to both his claims of past
5 and future harm, and is dispositive of asylum, withholding of
6 removal, and CAT relief because all three forms of relief are
7 based on the same discredited factual predicate. See Paul v.
8 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of removal
11 that the Court previously granted in this petition is VACATED,
12 and any pending motion for a stay of removal in this petition
13 is DISMISSED as moot.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe,
16 Clerk of Court
“can ‘confidently predict’ that the agency would reach the
same decision absent the errors”).
7