Sun v. Garland ( 2022 )

20-806
Sun v. Garland
BIA
Schoppert, IJ
A206 560 235
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 4th day of August, two thousand twenty-two.
PRESENT:
REENA RAGGI,
JOSEPH F. BIANCO,
EUNICE C. LEE,
Circuit Judges.
_____________________________________
HUA SUN,
Petitioner,
v. 20-806
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Aleksander Boleslaw Milch, Esq.,
Flushing, N.Y.
FOR RESPONDENT: Jeffrey Bossert Clark, Acting
Assistant Attorney General;
Bernard A. Joseph, Senior
Litigation Counsel; Enitan O.
Otunla, 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.
Petitioner Hua Sun, a native and citizen of the People’s
Republic of China, seeks review of a February 19, 2020
decision of the BIA that affirmed a May 1, 2018 decision of
an Immigration Judge (“IJ”) denying her application for
asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). In re Hua Sun, No. A206
560 235 (B.I.A. Feb. 19, 2020), aff’g No. A206 560 235
(Immigr. Ct. N.Y.C. May 1, 2018). The Court assumes the
parties’ familiarity with the underlying facts and procedural
history.
The Court has reviewed both the IJ’s and the BIA’s
opinions “for the sake of completeness.” Wangchuck v. Dep’t
of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The Court
reviews adverse credibility determinations for substantial
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evidence, see Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
Cir. 2018), and treats the agency’s findings of fact as
“conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary,” 8 U.S.C.
§ 1252(b)(4)(B).
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on . . . the consistency between the applicant’s
or witness’s written and oral statements . . . , the
consistency of such statements with other evidence of record
. . . , and any inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim . . . .”
8 U.S.C. § 1158(b)(1)(B)(iii). “[The Court] defer[s] . . .
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 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
accord Hong Fei Gao, 891 F.3d at 76.
The Court concludes that substantial evidence supports
the agency’s adverse credibility determination. The agency
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reasonably relied on inconsistencies between Sun’s written
applications and her testimony regarding whether she had been
granted asylum status in France or otherwise resettled there
and the timing of her husband’s presence in the United States.
See 8 U.S.C. § 1158(b)(1)(B)(iii) (denoting “consistency
between the applicant’s . . . written and oral statements” as
factor in credibility determination). That these
inconsistencies are not directly related to her claim that
she was forced to undergo an abortion in 1992 is irrelevant.
“[A]n IJ may rely on any inconsistency . . . as long as the
‘totality of the circumstances’ establishes that an asylum
applicant is not credible.” Xiu Xia Lin, 534 F.3d at 167(quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). “[A] single
instance of false testimony may (if attributable to the
petitioner) infect the balance of the alien’s uncorroborated
or unauthenticated evidence.” Siewe v. Gonzales, 480 F.3d
160, 170 (2d Cir. 2007).
In addition to the inconsistencies between written and
oral evidence, the agency also reasonably relied on the lack
of reliable corroboration. “An applicant’s failure to
corroborate . . . her testimony may bear on credibility,
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because the absence of corroboration in general makes an
applicant unable to rehabilitate testimony that has already
been called into question.” Biao Yang v. Gonzales, 496 F.3d
268, 273 (2d Cir. 2007). And an IJ may require reasonably
available corroboration of even credible testimony. 8 U.S.C.
§ 1158(b)(1)(B)(ii). The IJ did not err in concluding that
Sun’s husband’s testimony was reasonably available given his
apparent presence in the United States at the time of Sun’s
hearing and his interest in the proceedings. See Yan Juan
Chen v. Holder, 658 F.3d 246, 253 (2d Cir. 2011) (rejecting
argument that alien’s husband’s testimony was reasonably
unavailable because his testimony on her behalf “would inure
to his benefit,” and he “had a common interest in her
presenting the strongest possible case”). Although Sun now
argues that her husband could not have confirmed that she had
a forced abortion because he was not present for the
procedure, his written statement purported to confirm the
forced abortion. See Admin. R. 185. The IJ did not err in
declining to credit the written statement because Sun’s
husband was an interested witness who was not made available
for cross examination. See Y.C. v. Holder, 741 F.3d 324, 334
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(2d Cir. 2013) (upholding BIA’s decision to afford little
weight to letter from applicant’s spouse in China because,
inter alia, it was submitted by an interested witness); Matter
of H–L–H & Z–Y–Z–, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)
(giving diminished weight to letters from “relatives and
friends” because they were from interested witnesses not
subject to cross-examination), abrogated on other grounds by
Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). Nor
did the IJ err in declining to credit a medical certificate
documenting an abortion because, among other reasons, the
reliability of the certificate turned on Sun’s credibility.
See Y.C., 741 F.3d at 332 (“[The Court] generally defer[s] to
the agency’s evaluation of the weight to be afforded an
applicant’s documentary evidence.”).
Because the adverse credibility determination is
dispositive of each of Sun’s claims, including for asylum,
the Court does not reach the agency’s finding regarding firm
resettlement. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
(“As a general rule courts and agencies are not required to
make findings on issues the decision of which is unnecessary
to the results they reach.”).
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For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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