17-2800
Sun v. Barr
BIA
Leeds, IJ
A205 240 400
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 13th day of August, two thousand nineteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DEBRA ANN LIVINGSTON,
9 RICHARD J. SULLIVAN,
10 Circuit Judges.
11 _____________________________________
12
13 XIAOQIAN SUN,
14 Petitioner,
15
16 v. 17-2800
17 NAC
18 WILLIAM P. BARR,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Wei Gu, Albertson, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; John S. Hogan,
27 Assistant Director; Matthew A.
28 Spurlock, Trial Attorney, Office
29 of 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
4 is DENIED.
5 Petitioner Xiaoqian Sun, a native and citizen of the
6 People’s Republic of China, seeks review of an August 16,
7 2017, decision of the BIA affirming a February 3, 2017,
8 decision of an Immigration Judge (“IJ”) denying Sun’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Xiaoqian
11 Sun, No. A 205 240 400 (B.I.A. Aug. 16, 2017), aff’g No. A 205
12 240 400 (Immig. Ct. N.Y. City Feb. 3, 2017). We assume the
13 parties’ familiarity with the underlying facts and procedural
14 history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and BIA’s decisions. Wangchuck v. Dep’t of
17 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
18 adverse credibility determinations under a substantial
19 evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei
20 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). The
21 governing REAL ID Act credibility standard provides as
2
1 follows:
2 Considering the totality of the circumstances, and
3 all relevant factors, a trier of fact may base a
4 credibility determination on the demeanor, candor,
5 or responsiveness of the applicant or witness, the
6 inherent plausibility of the applicant’s or
7 witness’s account, the consistency between the
8 applicant’s or witness’s written and oral statements
9 . . . the internal consistency of each such
10 statement, the consistency of such statements with
11 other evidence of record . . . and any inaccuracies
12 or falsehoods in such statements, without regard to
13 whether an inconsistency, inaccuracy, or falsehood
14 goes to the heart of the applicant’s claim, or any
15 other relevant factor.
16
17 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
18 credibility determination unless . . . it is plain that no
19 reasonable fact-finder could make such an adverse credibility
20 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
21 2008); see 8 U.S.C. § 1252(b)(4)(B). As discussed below,
22 substantial evidence supports the agency’s determination that
23 Sun was not credible.
24 “[A] material inconsistency in an aspect of [the
25 applicant]’s story that served as an example of the very
26 persecution from which [s]he sought asylum” can provide
27 substantial evidence for an adverse credibility ruling. Xian
28 Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir.
3
1 2006) (quoting Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir.
2 2005)). Although “asylum applicants are not required to list
3 every incident of persecution” in their applications, Pavlova
4 v. INS, 441 F.3d 82, 90 (2d Cir. 2006), the agency may
5 reasonably conclude that an applicant lacks credibility if
6 her application and testimony “described the same incidents
7 of persecution differently,” Lianping Li v. Lynch, 839 F.3d
8 144, 150 (2d Cir. 2016). Moreover, “IJs must distinguish
9 between (1) omissions that arise merely because an
10 applicant’s oral testimony is more detailed than his or her
11 written application, and (2) omissions that tend to show that
12 an applicant has fabricated his or her claim.” Hong Fei Gao,
13 891 F.3d at 82.
14 In Sun’s case, the agency reasonably found that her
15 supplemental statement and testimony contradicted, rather
16 than supplemented, her initial description of her abortion,
17 and suggested that she had fabricated her claim. Absent the
18 additional information that the abortion was forced, Sun’s
19 application did not state an asylum claim. See 8 U.S.C.
20 § 1101(a)(42) (extending refugee definition to cover “person
21 who has been forced to abort a pregnancy or to undergo
4
1 involuntary sterilization” (emphasis added)). Whereas Sun’s
2 asylum application and initial statement alleged that she had
3 an abortion under pressure from her ex-boyfriend’s parents,
4 she made no mention of any involvement of family planning
5 authorities. By contrast, her supplemental statement and
6 testimony claimed that two family planning officers came to
7 her parent’s home, “dragged” her to the local hospital, and
8 physically compelled her to have an abortion.
9 The IJ was not required to credit Sun’s explanation that
10 she did not know which details to include in her initial
11 statement because she was represented by counsel and her
12 initial statement described the involvement of family
13 planning authorities in her mother’s forced abortion in 1999.
14 See Majidi, 430 F.3d at 80 (“A petitioner must do more than
15 offer a plausible explanation for [her] inconsistent
16 statements to secure relief; [s]he must demonstrate that a
17 reasonable fact-finder would be compelled to credit [her]
18 testimony.” (internal quotation marks and citations
19 omitted)).
20 The agency also reasonably found that Sun’s corroborating
21 evidence did not rehabilitate her testimony. See Biao Yang
5
1 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The IJ gave
2 full weight to the medical records of Sun’s 2007 abortion but
3 concluded that they did not state or imply that Sun’s abortion
4 was involuntary. And the IJ was permitted to give limited
5 weight to the letters from Sun’s mother, friend, and ex-
6 boyfriend, none of whom were available for cross examination.
7 See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013).
8 Moreover, only the ex-boyfriend stated that family planning
9 officials forced Sun to have an abortion; Sun’s mother and
10 friend did not state whether the abortion was forced or
11 voluntary.
12 The material inconsistency regarding whether Sun’s
13 abortion was forced or voluntary provided substantial
14 evidence for the adverse credibility ruling. See Xian Tuan
15 Ye, 446 F.3d at 295; Majidi, 430 F.3d at 81. Because Sun’s
16 claims were all based on the same factual predicate, the
17 adverse credibility determination is dispositive of asylum,
18 withholding of removal, and CAT relief. Paul v. Gonzales,
19 444 F.3d 148, 156-57 (2d Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of removal
6
1 that the Court previously granted in this petition is VACATED,
2 and any pending motion for a stay of removal in this petition
3 is DISMISSED as moot. Any pending request for oral argument
4 in this petition is DENIED in accordance with Federal Rule of
5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
6 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
10
7