Ren v. Garland

20-3384 Ren v. Garland BIA Nelson, IJ A206 562 605 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 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 27th day of June, two thousand twenty-two. 5 6 PRESENT: 7 GERARD E. LYNCH, 8 MICHAEL H. PARK, 9 MYRNA PÉREZ, 10 Circuit Judges. 11 _____________________________________ 12 13 YABIN REN, 14 Petitioner, 15 16 v. 20-3384 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Wei Gu, Esq., Albertson, NY. 24 25 FOR RESPONDENT: Brian Boynton, Acting Assistant 26 Attorney General; Jessica E. 27 Burns, Senior Litigation Counsel; 28 Scott M. Marconda, Trial Attorney, 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Yabin Ren, a native and citizen of the 9 People’s Republic of China, seeks review of a September 4, 10 2020, decision of the BIA affirming a July 31, 2018, decision 11 of an Immigration Judge (“IJ”) denying Ren’s application for 12 asylum, withholding of removal, and relief under the 13 Convention Against Torture (“CAT”). In re Yabin Ren, No. A 14 206 562 605 (B.I.A. Sept. 4, 2020), aff’g No. A 206 562 605 15 (Immig. Ct. N.Y. City Jul. 31, 2018). We assume the parties’ 16 familiarity with the underlying facts and procedural history. 17 We have reviewed the IJ’s decision as supplemented by 18 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 19 Cir. 2005). We review adverse credibility determinations 20 under a substantial evidence standard, Hong Fei Gao v. 21 Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and “the 22 administrative findings of fact are conclusive unless any 23 reasonable adjudicator would be compelled to conclude to the 2 1 contrary,” 8 U.S.C. § 1252(b)(4)(B). 2 “Considering the totality of the circumstances, and all 3 relevant factors, a trier of fact may base a credibility 4 determination on the demeanor, candor, or responsiveness of 5 the applicant or witness, . . . the consistency between the 6 applicant's or witness's written and oral statements . . . , 7 the internal consistency of each such statement, the 8 consistency of such statements with other evidence of record 9 . . . , and any inaccuracies or falsehoods in such statements, 10 without regard to whether an inconsistency, inaccuracy, or 11 falsehood goes to the heart of the applicant’s claim, or any 12 other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We 13 defer . . . to an IJ’s credibility determination unless, from 14 the totality of the circumstances, it is plain that no 15 reasonable fact-finder could make such an adverse credibility 16 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 17 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial 18 evidence supports the agency’s conclusion that Ren was not 19 credible as to his claim that the police arrested, detained, 20 and beat him for reading about Falun Gong at an internet cafe. 21 The agency reasonably relied on an inconsistency between 3 1 Ren’s testimony and asylum application regarding his 2 treatment while detained. See 8 U.S.C. § 1158(b)(1)(B)(iii). 3 Ren’s application specified that the police brought him into 4 an interrogation room, sat him down, asked multiple 5 questions, and heard Ren respond twice before they beat and 6 kicked him; but he testified to contradictory details, 7 stating that the police attacked him immediately, before he 8 was able to respond. The agency was not required to credit 9 Ren’s explanation that he was attempting to tell a 10 “simplified” version of events. See Majidi v. Gonzales, 430 11 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than 12 offer a plausible explanation for his inconsistent statements 13 to secure relief; he must demonstrate that a reasonable fact- 14 finder would be compelled to credit his testimony.” (internal 15 quotation marks omitted)). 16 In addition, the agency reasonably relied on 17 contradictions between Ren’s 2013 application for the visa 18 which allowed him to travel to the United States and his 19 asylum application. 8 U.S.C. § 1158(b)(1)(B)(iii). In the 20 visa application, Ren claimed that he was married, had 21 attended Dalian Maritime University, and had no prior 4 1 arrests; his asylum application states that he is unmarried, 2 had no education past middle school, and was previously 3 arrested. Ren did not exhaust or challenge this finding 4 before the BIA and does not challenge it here. Thus, it is 5 unexhausted and waived and stands as a valid basis for the 6 adverse credibility determination. See Shunfu Li v. Mukasey, 7 529 F.3d 141, 146-47 (2d Cir. 2008) (concluding that 8 unexhausted and waived grounds for adverse credibility 9 determination “could, by themselves, support an adverse 10 credibility determination”). Were we to reach the finding, 11 we would discern no error. Although false statements made 12 to flee persecution do not undermine credibility, the agency 13 did not err in relying on the inconsistencies because Ren did 14 not disavow the visa application at the hearing or clarify 15 what information was true. See Siewe v. Gonzales, 480 F.3d 16 160, 170 (2d Cir. 2007) (“The presentation of fraudulent 17 documents that were created to escape persecution may 18 actually tend to support an alien’s application . . . But 19 this does not include false documents submitted as genuine to 20 the IJ or BIA.” (internal citation omitted)). 21 The adverse credibility determination is bolstered by 5 1 Ren’s omission of information from his application and the 2 IJ’s demeanor finding. The agency reasonably relied on Ren’s 3 failure to mention injuries sustained in detention and 4 medical treatment for the injuries after his release. See 5 Xiu Xia Lin, 534 F.3d at 167 (holding that “an IJ may rely on 6 any inconsistency or omission in making an adverse 7 credibility determination as long as the ‘totality of the 8 circumstances’ establishes that an asylum applicant is not 9 credible” (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)); see also 10 Hong Fei Gao, 891 F.3d at 78 (“[T]he probative value of a 11 witness’s prior silence on particular facts depends on 12 whether those facts are ones the witness would reasonably 13 have been expected to disclose.”). We give “particular 14 deference” to the IJ’s demeanor finding, which Ren does not 15 challenge, because “the IJ’s ability to observe . . . demeanor 16 places her in the best position to evaluate whether apparent 17 problems in the . . . testimony suggest a lack of credibility 18 or, rather, can be attributed to an innocent cause such as 19 difficulty understanding the question.” Li Hua Lin v. U.S. 20 Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (quotation 21 marks omitted). 6 1 Finally, the agency reasonably relied on Ren’s lack of 2 reliable corroboration. See Biao Yang v. Gonzales, 496 F.3d 3 268, 273 (2d Cir. 2007) (“An applicant’s failure to 4 corroborate his or her testimony may bear on credibility, 5 because the absence of corroboration in general makes an 6 applicant unable to rehabilitate testimony that has already 7 been called into question.”). The agency did not err in 8 declining to credit Ren’s evidence because the documents 9 either did not resolve inconsistencies or were from 10 interested witnesses or individuals not available for cross- 11 examination. See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 12 2013) (“We generally defer to the agency’s evaluation of the 13 weight to be afforded an applicant’s documentary evidence.”); 14 Matter of H–L–H & Z–Y–Z–, 25 I. & N. Dec. 209, 215 (B.I.A. 15 2010) (giving diminished evidentiary weight to letters from 16 “relatives and friends,” because they were from interested 17 witnesses not subject to cross-examination), rev’d on other 18 grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 19 2012). 20 In sum, the inconsistencies, omissions, demeanor 21 finding, and lack of reliable corroboration constitute 7 1 substantial evidence for the adverse credibility 2 determination and support the agency’s conclusion that Ren 3 failed to meet his burden of proof. See 8 U.S.C. 4 § 1158(b)(1)(B)(ii), (iii); Xiu Xia Lin, 534 F.3d at 5 167. While CAT relief and withholding of removal may be 6 available in some circumstances notwithstanding an adverse 7 credibility determination as to asylum, the adverse 8 credibility determination here is dispositive of all three 9 claims because they were based on the same factual 10 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d 11 Cir. 2006). 12 For the foregoing reasons, the petition for review is 13 DENIED. All pending motions and applications are DENIED and 14 stays VACATED. 15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court 8