15-2261
Li v. Lynch
BIA
Poczter, IJ
A205 050 606/607
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.
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
14th day of December, two thousand sixteen.
PRESENT:
JON O. NEWMAN,
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
XIAOHONG LI, WEIJUN DU, AKA WEI
JIAN DU,
Petitioners,
v. 15-2261
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Jim Li, Flushing, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Kiley
Kane, Senior Litigation Counsel;
Robert Michael Stalzer, Trial
Attorney; Office of Immigration
Litigation, United States
Department of Justice, Washington,
D.C.
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.
Petitioners Xiaohong Li and Weijun Du, natives and citizens
of the People’s Republic of China, seek review of a July 2, 2015,
decision of the BIA affirming a March 14, 2013, decision of an
Immigration Judge (“IJ”) ordering their removal and denying
Li’s application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Xiaohong
Li, Weijun Du, No. A205 050 606/607 (B.I.A. July 2, 2015), aff’g
No. A205 050 606/607 (Immig. Ct. N.Y. City Mar. 14, 2013). We
assume the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed both
the IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432
F.3d 391, 394 (2d Cir. 2005). The applicable standards of
review are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu
Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
For asylum applications like Li’s, governed by the REAL ID
Act, the agency may, “[c]onsidering the totality of the
circumstances,” base a negative credibility finding on
inconsistencies or omissions in an asylum applicant’s
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statements, her witness’s statements, and other record
evidence. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d
at 163-64. “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, 534 F.3d at 167. The record
supports the agency’s determination that Li was not credible.
The agency reasonably relied on an inconsistency between
Li’s testimony and the record evidence regarding whether her
husband and brother were beaten in detention, and on an omission
regarding the extent of her brother-in-law’s injuries. See Xia
Xia Lin, 534 F.3d at 166-67 & n.3. Li testified that her husband
and younger brother were not physically mistreated in
detention, while her asylum application reported that they were
“severely beaten.” And Li’s husband Du testified that Li’s
brother-in-law sustained a broken leg from police beatings,
while Li’s testimony, asylum application, and a letter from her
brother-in-law omitted this allegation. The IJ was not
compelled to credit Li’s explanations for these discrepancies.
See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
petitioner must do more than offer a plausible explanation for
his inconsistent statements to secure relief; he must
demonstrate that a reasonable fact-finder would be compelled
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to credit his testimony.” (quoting Zhou Yun Zhang v. U.S. INS,
386 F.3d 66, 76 (2d Cir. 2004))).
The agency also did not err in concluding that Li’s
corroborating evidence was insufficient to rehabilitate her
credibility because it was itself inconsistent with her
testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
Cir. 2007) (An applicant’s failure to corroborate his . . .
testimony may bear on credibility, because the absence of
corroboration makes an applicant unable to rehabilitate
testimony that has already been called into question.”). Li’s
argument that the agency should have allowed her to submit
additional corroborating evidence is not properly before us,
as Li did not raise the argument before the BIA. See Lin Zhong
v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007). And
the argument is meritless: the agency was not required to give
Li an opportunity to supplement the record with additional
corroborating evidence intended to rehabilitate her previous
omission. It was Li’s burden to provide such evidence in the
first instance. See Chuilu Liu v. Holder, 575 F.3d 193, 198
(2d Cir. 2006) (holding that alien has burden to produce
“evidence without prompting from the IJ”).
Given the inconsistent testimony and omission regarding
the sole incident of persecution on which Li’s application was
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based, the totality of the circumstances supports the agency’s
adverse credibility determination. See Xiu Xia Lin, 534 F.3d
at 165-66; Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,
295-96 (2d Cir. 2006). The 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).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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