Shi v. Sessions ( 2018 )

16-4185
Shi v. Sessions
BIA
Vomacka, IJ
A205 277 778
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 17th day of August, two thousand eighteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12 YAN LIN SHI,
13 Petitioner,
14 v. 16-4185
15 NAC
16 JEFFERSON B. SESSIONS III,
17 UNITED STATES ATTORNEY GENERAL,
18 Respondent.
19 _____________________________________
20
21 FOR PETITIONER: Lee Ratner, New York, NY.
22
23 FOR RESPONDENT: Chad A. Readler Acting Assistant
24 Attorney General; Nancy Friedman,
25 Senior Litigation Counsel; Gregory
26 A. Pennington, Jr., Trial
27 Attorney, Office of Immigration
28 Litigation, United States
29 Department of Justice, Washington,
30 DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Yan Lin Shi, a native and citizen of the
6 People’s Republic of China, seeks review of a November 29,
7 2016, decision of the BIA affirming an October 8, 2015,
8 decision of an Immigration Judge (“IJ”) denying Shi’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Yan
11 Lin Shi, No. A 205 277 778 (B.I.A. Nov. 29, 2016), aff’g No.
12 A 205 277 778 (Immig. Ct. N.Y. City Oct. 8, 2015). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA and consider only
17 the bases that the IJ relied on for the credibility
18 determination. See Xue Hong Yang v. U.S. Dep’t of Justice,
19 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards
20 of review are well established. See 8 U.S.C.
21 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-
2
1 66 (2d Cir. 2008). In making a credibility determination,
2 the agency must “[c]onsider[] the totality of the
3 circumstances” and may base its determination on the
4 applicant’s “demeanor, candor, or responsiveness, . . .
5 the inherent plausibility of the applicant’s . . .
6 account,” inconsistencies or omissions in the applicant’s
7 statements or between her statements and other evidence
8 “without regard to whether an inconsistency, inaccuracy, or
9 falsehood goes to the heart of the applicant’s claim, or
10 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii);
11 Xiu Xia Lin, 534 F.3d at 163-64, 166-67. “We
12 defer . . . to an IJ’s credibility determination unless,
13 from the totality of the circumstances, it is plain that no
14 reasonable fact-finder could make such an adverse
15 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. We
16 conclude that there is substantial evidence for the adverse
17 credibility determination given the inconsistencies between
18 Shi’s testimony and documentary evidence, her intentional
19 misstatements during her credible fear interview, and her
20 implausible testimony.
21
3
1 Inconsistencies
2 The agency reasonably relied on Shi’s inconsistent
3 descriptions of church services in China. 8 U.S.C.
4 § 1158(b)(1)(B)(iii). Shi testified that she never met a
5 pastor while attending house church services, but wrote in
6 her asylum application that “our pastor brought some Bibles
7 for us when he came to give preaching” and that “only the
8 pastor had [a Bible] in his hands.” The IJ reasonably
9 concluded that these competing descriptions called into
10 question Shi’s actual knowledge of the services. See Siewe
11 v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Decisions
12 as to . . . which of competing inferences to draw are
13 entirely within the province of the trier of fact.”
14 (quoting Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 44
15 (2d Cir. 2000))). Shi’s explanation that typically there is
16 no pastor did not resolve the inconsistency, particularly
17 because she repeated that there was never a pastor at the
18 services she attended. The IJ was not required to credit
19 Shi’s explanation that other worshipers told her that the
20 pastor had a Bible. See Majidi v. Gonzales, 430 F.3d 77,
21 80 (2d Cir. 2005) (“A petitioner must do more than offer a
4
1 plausible explanation for his inconsistent statements to
2 secure relief; he must demonstrate that a reasonable fact-
3 finder would be compelled to credit his testimony.”
4 (internal quotation marks omitted)).
5 Credible Fear Interview
6 The agency reasonably relied on Shi’s admission that
7 she misrepresented her Christianity to an asylum officer
8 during her credible fear interview. “We have frequently .
9 . . held [that] an IJ’s application of the maxim falsus in
10 uno, falsus in omnibus [false in one thing, false in
11 everything] may at times be appropriate.” Siewe, 480 F.3d
12 at 170 (internal quotation marks omitted). In her asylum
13 application, Shi admitted to misrepresenting her practice
14 of Christianity to the asylum officer. The agency
15 reasonably rejected her explanation that she was following
16 a snakehead’s advice given the frequency of Chinese
17 Christian asylum applicants. The IJ reasonably inferred
18 that Shi’s explanation was likely fabricated to explain her
19 lack of knowledge of Christianity at the time of her
20 credible fear interview, particularly as she testified—
21 inconsistently with her application—that everything she
5
1 said at her interview was true, and she was unresponsive
2 when confronted with the admission in her application that
3 she had provided false information. Siewe, 480 F.3d at
4 168-69 (“The speculation that inheres in inference is not
5 ‘bald’ if the inference is made available to the factfinder
6 by record facts, or even a single fact, viewed in the light
7 of common sense and ordinary experience. So long as an
8 inferential leap is tethered to the evidentiary record, we
9 will accord deference to the finding.”).
10 Implausibility
11 Finally, the agency reasonably deemed Shi’s testimony
12 about her passport implausible. The IJ was permitted to
13 draw inferences “from direct and circumstantial evidence,”
14 which is a “routine and necessary task of any factfinder.”
15 Id. at 167. Shi was not clear about when and how she
16 obtained her passport and then conceded that she obtained
17 it shortly before she allegedly began attending a church.
18 The IJ reasonably inferred that her inconsistent answers
19 were attempts to conceal that she obtained her passport
20 (and thus anticipated travel abroad) before she began her
21 purported church involvement. Id. at 168-69.
6
1 The agency reasonably determined that Shi’s ability to
2 depart China using her own passport and later obtain a new
3 passport from the Chinese consulate in the United States,
4 despite being wanted by Chinese police, was implausible. See
5 Ying Li v. Bureau of Citizenship & Immigration Servs., 529
6 F.3d 79, 83 (2d Cir. 2008). The IJ’s finding was grounded
7 in the record given the report from the Australian government
8 detailing the comprehensive database Chinese authorities use
9 at airports to ensure that fugitives are prevented from
10 leaving the country. See Siewe, 480 F.3d at 168-69.
11 Given the inconsistencies about Shi’s actual involvement
12 in Christianity in China, her intentional misstatements about
13 her religion, and the implausibility of aspects of Shi’s
14 explanations and departure from China, the “totality of the
15 circumstances” supports the agency’s adverse credibility
16 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
17 Lin, 534 F.3d at 167. The adverse credibility determination
18 is dispositive of asylum, withholding of removal, and CAT
19 relief because all three claims are based on the same factual
20 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
21 Cir. 2006). Because Shi challenges only the agency’s adverse
7
1 credibility determination in her brief, we do not reach the
2 agency’s separate analysis of her practice of Christianity in
3 the United States. See Yueqing Zhang v. Gonzales, 426 F.3d
4 540, 541 n.1, 545 n.7 (2d Cir. 2005) (providing that issues
5 not raised in an opening brief are waived).
6 For the foregoing reasons, the petition for review is
7 DENIED. The motion for stay of removal is denied as moot.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe,
10 Clerk of Court
8