18-2585
Wu v. Garland
BIA
Cassin, IJ
A200 929 089
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 March, two thousand twenty-one.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 SAIGUAN WU,
14 Petitioner,
15
16 v. 18-2585
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent. 1
21 _____________________________________
22
23 FOR PETITIONER: Zhiyuan Qian, Law Office of David
24 Chien, P.C., New York, NY.
1 Pursuantto Fed. R. App. P. 43(c)(2), Merrick B. Garland is
automatically substituted for former U.S. Attorney General
William P. Barr.
1 FOR RESPONDENT: Brian Boynton, Acting Assistant
2 Attorney General; John S. Hogan,
3 Assistant Director; Todd J.
4 Cochran, Trial Attorney; Katherine
5 V. Phillips, Law Clerk, Office of
6 Immigration Litigation, United
7 States Department of Justice,
8 Washington, DC.
9
10 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
11 AND DECREED that this petition for review of a decision of
12 the Board of Immigration Appeals (“BIA”) is DENIED.
13 Petitioner Saiguan Wu, a native and citizen of the
14 People’s Republic of China, seeks review of an August 1, 2018
15 decision of the BIA affirming an August 29, 2017 decision of
16 an Immigration Judge (“IJ”) denying his application for
17 asylum, withholding of removal, and relief under the
18 Convention Against Torture (“CAT”). In re Saiguan Wu, No.
19 A200 929 089 (B.I.A. Aug. 1, 2018), aff’g No. A200 929 089
20 (Immig. Ct. N.Y.C. Aug. 29, 2017). We assume the parties’
21 familiarity with the underlying facts and procedural history.
22 Under the circumstances of this case, we have reviewed
23 the IJ’s decision as modified by the BIA, i.e., without the
24 inconsistencies that the IJ identified with respect to Wu’s
25 travel from China and which days he attended church services
26 in the United States that the BIA did not rely on. See Xue
27 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
2
1 Cir. 2005). The applicable standards of review are well
2 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
3 Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
4 “Considering the totality of the circumstances, and all
5 relevant factors, a trier of fact may base a credibility
6 determination on . . . the consistency between the applicant’s
7 or witness’s written and oral statements . . . , the internal
8 consistency of each such statement, . . . and any inaccuracies
9 or falsehoods in such statements, without regard to whether
10 an inconsistency, inaccuracy, or falsehood goes to the heart
11 of the applicant’s claim, or any other relevant factor.”
12 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
13 credibility determination unless, from the totality of the
14 circumstances, it is plain that no reasonable fact-finder
15 could make such an adverse credibility ruling.” Xiu Xia Lin
16 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
17 Gao, 891 F.3d at 76. Substantial evidence supports the
18 agency’s determination that Wu was not credible given his
19 omission of facts related to the severity of his alleged past
20 harm and his inconsistent statements about his practice of
21 Christianity in the United States.
22
3
1 The agency reasonably relied on Wu’s omission from his
2 asylum application of the most severe details of his treatment
3 in detention. See Xiu Xia Lin, 534 F.3d at 166 n.3 (stating
4 that “[a]n inconsistency and an omission are . . .
5 functionally equivalent” for credibility purposes). In that
6 application, Wu stated that an officer slapped him during an
7 interrogation session during his detention in China. But he
8 later testified that he was beaten on his face, stomach, and
9 back. When asked why he did not detail the extent of his
10 beating and injuries in his application, Wu said that he
11 “forgot to write it down.” Admin. Rec. at 154–55. In a post-
12 hearing affidavit, he stated that he forgot to tell the
13 attorney who prepared his asylum application that he was
14 beaten on the back and stomach.
15 Although “asylum applicants are not required to list
16 every incident of persecution” in an application, Pavlova v.
17 INS, 441 F.3d 82, 90 (2d Cir. 2006), Wu’s testimony did not
18 merely provide additional detail, he testified to a
19 substantially more serious attack, see Majidi v. Gonzales,
20 430 F.3d 77, 79-80 (2d Cir. 2005) (relying on applicant’s
21 failure to mention that he was present and beaten when his
22 home was ransacked). Nor was the agency required to accept
4
1 his explanations that he forgot to include the additional
2 information or forgot to provide the information to the
3 attorney. See id. at 80 (“A petitioner must do more than
4 offer a plausible explanation for his inconsistent statements
5 to secure relief; he must demonstrate that a reasonable fact-
6 finder would be compelled to credit his testimony.” (internal
7 quotation marks omitted)); see also Hong Fei Gao, 891 F.3d at
8 78–79 (“[I]n assessing the probative value of the omission of
9 certain facts, an IJ should consider whether those facts are
10 ones that a credible petitioner would reasonably have been
11 expected to disclose under the relevant circumstances.”).
12 While he now argues that it was “inevitable” that some details
13 were left out because the application “was prepared by someone
14 else” and was not written in his native language, these are
15 not the explanations he offered to the agency and are
16 inconsistent with his prior claim that he forgot to provide
17 the information. Petr’s Br. at 6. Because Wu’s detention
18 was the basis for his claim, these omissions about the extent
19 of his physical harm constitute substantial evidence for the
20 adverse credibility determination. See Xian Tuan Ye v. Dep’t
21 of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding
22 that even a single inconsistency is sufficient to support an
5
1 adverse credibility determination if it is material and
2 relates to “an example of the very persecution from which”
3 the applicant seeks asylum).
4 The agency also reasonably relied on Wu’s inconsistent
5 testimony about his baptism to conclude that he was not
6 credible as to his practice of Christianity in the United
7 States. See Biao Yang v. Gonzales, 496 F.3d 268, 272–73 (2d
8 Cir. 2007) (upholding adverse credibility determination based
9 on inconsistencies regarding when petitioner was baptized
10 because his “claims of persecution are based on his practice
11 of religion”). Wu submitted certifications from his church
12 that he was baptized three weeks after he began attending
13 services, but he testified that he took classes for twelve
14 weeks before his baptism. After Wu’s testimony concluded,
15 the Government and the IJ stated that they had concerns about
16 his credibility because it was not possible to attend classes
17 for twelve weeks in a three-week period. When Wu tried to
18 interject, the IJ advised him to consult with his attorney.
19 Although no explanation was provided at the hearing, Wu later
20 submitted both an affidavit stating that he was excused from
21 the classes because he passed an exam, and a letter from his
22 church to confirm that he was baptized after passing an exam.
6
1 The IJ was not required to accept Wu’s post-hearing
2 explanation as it conflicted with his unequivocal testimony
3 that he was required to take twelve classes. See Majidi, 430
4 F.3d at 80. While Wu argues that the IJ did not give him an
5 opportunity to explain the inconsistency, an IJ is not
6 required to solicit explanations for inconsistencies that are
7 “obvious and substantial.” Ming Shi Xue v. BIA, 439 F.3d
8 111, 120 (2d Cir. 2006).
9 Because Wu was not credible as to either his past harm
10 or his practice of Christianity, the adverse credibility
11 determination is dispositive of asylum, withholding of
12 removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148,
13 156–57 (2d Cir. 2006). Accordingly, we do not separately
14 address Wu’s argument that there is a pattern or practice of
15 persecution of Christians in China.
16 For the foregoing reasons, the petition for review is
17 DENIED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
7