He v. Lynch ( 2015 )

14-2572
He v. Lynch
BIA
Wright, IJ
A200 818 381
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
CORRECTED 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 27th day of July, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A.CABRANES,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 YUN HE,
14 Petitioner,
15
16 v. 14-2572
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Thomas V. Massucci, New York, NY.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Cindy S.
28 Ferrier, Assistant Director; Kimberly
29 A. Burdge, Trial Attorney, Office of
1 Immigration Litigation, United States
2 Department of Justice, Washington D.C.
3
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 is
7 DENIED.
8 Yun He, a native and citizen of the People’s Republic of
9 China, seeks review of a June 24, 2014 decision of the BIA
10 affirming the November 20, 2012 decision of an Immigration Judge
11 (“IJ”), denying her application for asylum, withholding of
12 removal, and relief pursuant to the Convention Against Torture
13 (“CAT”). In re Yun He, No. A200 818 381 (B.I.A. June 24, 2014),
14 aff’g No. A200 818 381 (Immig. Ct. N.Y. City Nov. 20, 2012).
15 We assume the parties’ familiarity with the underlying facts
16 and procedural history in this case.
17 Under the circumstances of this case, we have reviewed the
18 IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S.
19 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
20 applicable standards of review are well established. See 8
21 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
22 513 (2d Cir. 2009).
2
1 For asylum applications like He’s, governed by the REAL ID
2 Act of 2005, the agency may, “[c]onsidering the totality of the
3 circumstances,” base a credibility determination on
4 inconsistencies in an asylum applicant’s statements and other
5 record evidence “without regard to whether” the inconsistencies
6 go “to the heart of the applicant’s claim.” 8 U.S.C.
7 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
8 determination unless, from the totality of the circumstances,
9 it is plain that no reasonable fact-finder could make such” a
10 ruling. Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)
11 (per curiam). Substantial evidence supports the agency’s
12 adverse credibility determination.
13 He sought asylum and related relief based on an alleged
14 forced abortion and an altercation resulting from the Chinese
15 government’s confiscation of her parents’ home. The agency
16 relied on multiple inconsistencies in finding He not credible.
17 For example, He described in her personal statement and
18 testimony her forced abortion in China for having a child out
19 of wedlock. However, she made no mention of this incident
20 during her credible fear interview, instead stating at the
21 interview that she left China after her parents’ home was
3
1 confiscated. See Ming Zhang v. Holder, 585 F.3d 715, 725-26
2 (2d Cir. 2009); see also Xiu Xia Lin, 534 F.3d at 166 n.3. The
3 agency was not required to credit her explanations for this
4 discrepancy, which were themselves inconsistent. See Majidi
5 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
6 Moreover, contrary to He’s argument, her credible fear
7 interview contained the required indicia of reliability
8 because: (1) the interview record was typewritten in a question
9 and answer format; (2) the interview was conducted through an
10 interpreter; (3) the interviewer explained to He the purpose
11 of the interview and the importance of providing full and
12 accurate testimony; and (4) the interviewer asked questions
13 that were designed to elicit a potential basis for asylum. See
14 Ming Zhang, 585 F.3d at 725.
15 The agency also reasonably relied on inconsistencies
16 between He’s testimony and her documentary evidence. He stated
17 that she was beaten with a stick by cadres when they confronted
18 her parents about their failure to relinquish their property,
19 but her father’s letter did not mention that she was beaten.
20 Moreover, He’s testimony that her family’s home was demolished
21 in May or June 2010 conflicted with a letter from He’s friend,
4
1 who suggested that it had been demolished months earlier, and
2 a letter from her father, who listed the allegedly demolished
3 home as the return address. The agency was not required to
4 credit her explanations for these inconsistencies. See
5 Majidi, 430 F.3d at 80-81.
6 Having questioned He’s credibility, the agency did not err
7 in finding that her corroborating evidence did not rehabilitate
8 her incredible testimony. An applicant’s failure to
9 corroborate testimony may bear on credibility, either because
10 the absence of particular corroborating evidence is viewed as
11 suspicious, or because the absence of corroboration in general
12 makes an applicant unable to rehabilitate testimony that has
13 already been called into question. See Biao Yang v. Gonzales,
14 496 F.3d 268, 273 (2d Cir. 2007). The agency reasonably gave
15 diminished weight to letters from He’s father and friend
16 because, as discussed above, the letters were inconsistent in
17 part with He’s testimony, and, moreover, they were from
18 interested witnesses not subject to cross-examination. See
19 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d
20 Cir. 2006). Moreover, the agency reasonably gave limited
21 weight to a certificate from He’s village committee stating that
5
1 He had an abortion because it was not prepared contemporaneously
2 and was obtained by her father, an interested party, for
3 purposes of her asylum claim. See id.
4 Given the inconsistency and lack of corroboration
5 findings, substantial evidence supports the agency’s adverse
6 credibility determination. See Xiu Xia Lin, 534 F.3d at 167.
7 The adverse credibility determination is dispositive of asylum,
8 withholding of removal, and CAT relief, as the claims were based
9 on the same factual predicate. Paul v. Gonzales, 444 F.3d 148,
10 156-57 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DENIED as moot. Any pending request for oral argument in
16 this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2) and Second Circuit Local Rule
18 34.1(b).
19
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
6