17-2196
Li v. Barr
BIA
Sichel, IJ
A205 028 762
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 23rd day of May, two thousand nineteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
SHUANGMEI LI,
Petitioner,
v. 17-2196
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, Esq, New York,
NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Kohsei Ugumori,
Senior Litigation Counsel; Jesse
D. Lorenz, 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 in part and DISMISSED in part.
Petitioner Shuangmei Li, a native and citizen of China,
seeks review of a BIA’s decision affirming an Immigration
Judge’s (“IJ”) denial of Li’s application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). See In re Shuangmei Li, No. A205
028 762 (B.I.A. June 22, 2017), aff’g No. A205 028 762 (Immig.
Ct. N.Y. City Sept. 27, 2016).
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA, i.e., minus the
credibility findings that the BIA did not consider, see Xue
Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
Cir. 2005), applying well established standards of review
see 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891
F.3d 67, 76 (2d Cir. 2018) (reviewing adverse credibility
determination for substantial evidence). In so doing, we
assume the parties’ familiarity with the underlying facts and
procedural history of this case, which we reference only as
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necessary to explain our decision to deny in part, and dismiss
in part, the petition.
Adverse Credibility Determination
“[A] trier of fact may base a credibility determination
on the demeanor, candor, or responsiveness of the applicant
or witness, . . . the consistency between the applicant’s .
. . written and oral statements . . . , the internal
consistency of each such statement, [and] the consistency of
such statements with other evidence of record . . . without
regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim . . . . ” 8 U.S.C.
§ 1158(b)(1)(B)(iii). “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 v. Mukasey, 534
F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
at 76.
Applying these standards, we conclude that substantial
evidence supports the agency’s adverse credibility
determination here. The agency reasonably relied on Li’s
initial failure in her testimony to identify forced abortion
as the primary basis for her asylum claim. When initially
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asked by her counsel if she experienced persecution beyond
being forced to have an intrauterine device (“IUD”), Li said
no. Li subsequently discussed forced abortion only when
reminded by counsel. The agency reasonably relied on this
inconsistency, which related to the very basis of Li’s claim,
in concluding that Li was not credible. See Hong Fei Gao,
891 F.3d at 78 (“[T]he probative value of a witness’s . . .
silence on particular facts depends on whether those facts
are ones the witness would reasonably have been expected to
disclose.”); Xian Tuan Ye v. Dep’t of Homeland Sec., 446
F.3d 289, 295 (2d Cir. 2006) (holding that “material
inconsistency in an aspect of [the] story that served as an
example of the very persecution from which [petitioner]
sought asylum . . . afforded substantial evidence to support
the adverse credibility finding” (internal citation and
quotation marks omitted)).
Li did not otherwise rehabilitate her testimony with
reliable corroborating evidence. See Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to
corroborate his or her testimony . . . in general makes an
applicant unable to rehabilitate testimony that has already
been called into question.”). The agency did not err in
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declining to credit the statements from Li’s former husband
and a cousin because the authors were not available for cross-
examination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Y.C. v.
Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring to
agency’s decision to afford little weight to spouse’s letter
because it was unsworn and from an interested witness). Nor
did the agency err in declining to credit Li’s hospital record
of her abortion and fine receipt because these documents were
not authenticated, and their authors were also not available
for cross-examination. See 8 U.S.C. § 1158(b)(1)(B)(iii);
Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 218 214 n.5
(BIA 2010) (“[F]ailure to attempt to prove the authenticity
of a document through [8 C.F.R. § 1287.6] or any other means
is significant.”), overruled on other grounds by Hui Lin Huang
v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012). While 8
C.F.R. § 1287.6 is not the sole method for authenticating a
foreign document, see Cao He Lin v. U.S. Dep’t of Justice,
428 F.3d 391, 404 (2d Cir. 2005), Li failed to authenticate
the documents here at issue in any manner.
While the agency may have placed too much weight on Li’s
failure to testify that family planning officials threatened
to sterilize her and her husband, remand would be futile
5
because Li’s failure to mention her forced abortion and to
rehabilitate her testimony with reliable evidence provide
substantial and sufficient evidence for the agency’s adverse
credibility determination. See Hong Fei Gao, 891 F.3d at 78,
82 (noting that remand warranted only if “we cannot
confidently predict” that the IJ would have reached same
decision absent the errors); see also Xian Tuan Ye, 446 F.3d
at 295. This adverse credibility determination is
dispositive of asylum, withholding of removal, and CAT relief
because all three claims are based on the same factual
predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
Cir. 2006).
Due Process
Li argues that she was denied due process by the IJ’s
inadvertent failure to record parts of her testimony,
identifying when she removed her first IUD and failing to
mention her forced abortion. See 8 U.S.C. § 1229a(b)(4)(C);
8 CFR § 1240.47(requiring that immigration hearings “be
recorded verbatim except for statements made off the record
with the permission of the immigration judge”). Li did not
exhaust this argument before the agency, and, thus, we deem
it waived. We therefore dismiss this part of Li’s claim for
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lack of jurisdiction. See 8 U.S.C. § 1252(d)(1); Lin Zhong
v. U.S. Dep’t of Justice, 461 F.3d 101, 117-18 (2d Cir. 2006),
amended by 489 F.3d 104 (2d Cir. 2007).
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part. As we have completed
our review, any stay of removal that the Court previously
granted in this petition is VACATED, and any pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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