20-3446
Li-Zhen v. Garland
BIA
Parchert, IJ
A087 455 715
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 9th day of September, two thousand twenty-
5 two.
6
7 PRESENT:
8 GERARD E. LYNCH,
9 MICHAEL H. PARK,
10 BETH ROBINSON,
11 Circuit Judges.
12 _____________________________________
13
14 LI-ZHEN OU YANG,
15 Petitioner,
16
17 v. 20-3446
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent. *
22 _____________________________________
23
24 FOR PETITIONER: Yevgeny Samokhleb, Esq., New
25 York, NY.
* The Clerk of Court is respectfully directed to amend
the caption as set forth above.
1
2 FOR RESPONDENT: Brian Boynton, Acting Assistant
3 Attorney General; Julie M.
4 Iversen, Senior Litigation
5 Counsel; Jessica R. Lesnau, Trial
6 Attorney, Office of Immigration
7 Litigation, United States
8 Department of Justice, Washington,
9 DC.
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Petitioner Li-Zhen Ou Yang, a native and citizen of the
15 People’s Republic of China, seeks review of a September 11,
16 2020 decision of the BIA affirming a May 21, 2018 decision of
17 an Immigration Judge (“IJ”) denying her application for
18 asylum, withholding of removal, and relief under the
19 Convention Against Torture (“CAT”). In re Ou Yang Li-Zhen,
20 No. A 087 455 715 (B.I.A. Sept. 11, 2020), aff’g No. A 087 455
21 715 (Immigr. Ct. N.Y.C. May 21, 2018). We assume the parties’
22 familiarity with the underlying facts and procedural history.
23 In lieu of filing a brief, the Government moves for
24 summary denial of Ou Yang’s petition for review. Summary
25 denial is “a rare exception to the completion of the appeal
26 process” and is available only if an appeal is “truly
2
1 ‘frivolous.’” United States v. Davis, 598 F.3d 10, 13 (2d
2 Cir. 2010)(citation omitted). A claim is frivolous if it is
3 based on an “inarguable legal conclusion” or “fanciful
4 factual allegation.” Pillay v. INS, 45 F.3d 14, 16 (2d Cir.
5 1995); see also Neitzke v. Williams, 490 U.S. 319, 329 (1989)
6 (recognizing that “not all unsuccessful claims are
7 frivolous”). Ou Yang has filed her brief, so rather than
8 determining whether the petition exceeds the low bar for non-
9 frivolousness, we construe the Government’s motion as its
10 brief and deny the petition on the merits.
11 We have reviewed both the IJ’s and the BIA’s opinions
12 “for the sake of completeness.” Wangchuck v. Dep’t of
13 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
14 adverse credibility determinations for substantial evidence,
15 see Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018),
16 and treat the agency’s findings of fact as “conclusive unless
17 any reasonable adjudicator would be compelled to conclude to
18 the contrary,” 8 U.S.C. § 1252(b)(4)(B). “Considering the
19 totality of the circumstances, and all relevant factors, a
20 trier of fact may base a credibility determination on the
21 demeanor, candor, or responsiveness of the applicant or
3
1 witness, the inherent plausibility of the applicant’s . . .
2 account, the consistency between the applicant’s or witness’s
3 written and oral statements . . . , the internal consistency
4 of each such statement, the consistency of such statements
5 with other evidence of record . . . , and any inaccuracies or
6 falsehoods in such statements, without regard to whether an
7 inconsistency, inaccuracy, or falsehood goes to the heart of
8 the applicant’s claim, or any other relevant factor.”
9 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
10 credibility determination unless, from the totality of the
11 circumstances, it is plain that no reasonable fact-finder
12 could make such an adverse credibility ruling.” Xiu Xia Lin
13 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
14 Gao, 891 F.3d at 76.
15 Substantial evidence supports the agency’s determination
16 that Ou Yang was not credible as to her claim of a forced
17 abortion. The IJ found it implausible that family planning
18 authorities discovered Ou Yang’s pregnancy just weeks after
19 she became aware of it. This finding is “tethered” to the
20 record because Ou Yang stated that she discovered her
21 pregnancy through a home test, she was only two months along
4
1 when she alleged authorities forced her to have an abortion,
2 and she had told only her parents about the pregnancy. See
3 Siewe v. Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007)
4 (explaining that we defer to an IJ’s inference where it is
5 “made available to the factfinder by record facts, or even a
6 single fact, viewed in the light of common sense and ordinary
7 experience”).
8 Ou Yang’s remaining testimony and evidence either did
9 not rehabilitate or further undermined her credibility.
10 First, although she presented an abortion certificate, it did
11 not reflect that the abortion was involuntary. And in any
12 event, such certificates generally are issued to obtain time
13 off work following voluntary abortions. See Tu Lin v.
14 Gonzales, 446 F.3d 395, 400 (2d Cir. 2006). Second, her
15 testimony that family planning officials looked for her on
16 one occasion after the abortion conflicted with her uncle’s
17 letter, which stated they looked for her twice, as well as
18 her later testimony that the authorities came “many times.”
19 See 8 U.S.C. § 1158(b)(1)(B)(iii). Finally, the adverse
20 credibility determination is bolstered by the IJ’s demeanor
21 finding to which we give “particular deference” because “the
5
1 IJ’s ability to observe the [applicant’s] demeanor places
2 [the IJ] in the best position to evaluate whether apparent
3 problems in the . . . testimony suggest a lack of credibility
4 or, rather, can be attributed to an innocent cause . . . .”
5 Jin Chen v. U.S. Dep't of Justice, 426 F.3d 104, 113 (2d Cir.
6 2005).
7 Taken cumulatively, the implausibility of Ou Yang’s
8 testimony, the inconsistencies in her evidence, and the
9 demeanor finding provide substantial evidence for the adverse
10 credibility determination. See 8 U.S.C. §
11 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. That
12 determination is dispositive of asylum, withholding of
13 removal, and CAT relief because all three forms of relief
14 were based on the same factual predicate. See Paul v.
15 Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
16 For the foregoing reasons, the Government’s motion for
17 summary denial is construed as its brief and the petition for
18 review is DENIED.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe,
21 Clerk of Court
6