Xue v. Barr ( 2020 )

18-2629
Xue v. Barr
BIA
Poczter, IJ
A201 188 080
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 4th day of November, two thousand twenty.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 DENNY CHIN,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 MEIQIN XUE,
15 Petitioner,
16
17 v. 18-2629
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Ramesh Kumar Shrestha, New York,
25 NY.
26
27 FOR RESPONDENT: Joseph H. Hunt, Assistant
28 Attorney General; Brianne W.
29 Cohen, Senior Litigation Counsel;
1 Andrea N. Gevas, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of
4 Justice, Washington, DC.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Meiqin Xue, a native and citizen of the
11 People’s Republic of China, seeks review of an August 9, 2018,
12 decision of the BIA affirming an August 8, 2017, decision of
13 an Immigration Judge (“IJ”) denying her application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Meiqin Xue, No.
16 A201 188 080 (B.I.A. Aug. 9, 2018), aff’g No. A201 188 080
17 (Immig. Ct. N.Y. City Aug. 8, 2017). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 in this case.
20 Under the circumstances of this case, we have reviewed
21 both the IJ’s and the BIA’s opinions “for the sake of
22 completeness.” Wangchuck v. Dep’t of Homeland Security, 448
23 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
24 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
25 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
2
1 “Considering the totality of the circumstances, and all
2 relevant factors, a trier of fact may base a credibility
3 determination on the demeanor, candor, or responsiveness of
4 the applicant or witness, the inherent plausibility of the
5 applicant’s or witness’s account, the consistency between the
6 applicant’s or witness’s written and oral statements . . . ,
7 the internal consistency of each such statement, the
8 consistency of such statements with other evidence of record
9 . . . , without regard to whether an inconsistency,
10 inaccuracy, or falsehood goes to the heart of the applicant’s
11 claim, or any other relevant factor.” 8 U.S.C.
12 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
13 determination unless, from the totality of the circumstances,
14 it is plain that no reasonable fact-finder could make such an
15 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
16 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
17 at 76. Substantial evidence supports the agency’s
18 determination that Xue was not credible as to her claim that
19 police detained and beat her for practicing Christianity in
20 an underground church in China or as to her practice of
21 Christianity in the United States.
22 The agency reasonably relied on omissions in a letter
3
1 from Xue’s mother. See Xiu Xia Lin, 534 F.3d at 167
2 (affirming adverse credibility determination based, in part,
3 on omissions from corroborating letters). Xue testified
4 that, in February 2017, police officers threatened to charge
5 her mother with hiding a fugitive if Xue returned to China
6 and her mother did not report her, destroyed objects in her
7 parents’ home, and kicked in the door. But a March 2017
8 letter from Xue’s mother lacked those details. Although we
9 have cautioned against placing too much weight on omissions
10 from a corroborating letter, given that the purpose of the
11 letter was to corroborate Xue’s claims, including her fear of
12 future harm and the letter was written shortly after the
13 February 2017 incident, the omitted details were “ones the
14 witness would reasonably have been expected to disclose.”
15 Hong Fei Gao, 891 F.3d at 78, 81.
16 The agency also reasonably relied on the inconsistent
17 and incomplete medical documentation about the treatment Xue
18 received after her release from police custody. Xue
19 testified that she received treatment from the Xigen Clinic
20 and Dr. Huang’s Clinic and that she submitted a medical record
21 from the Xigen Clinic. But the copy of the treatment record
22 she submitted was from the Fuqing City Medical Institute, and
4
1 the entry for “Medical Institute of Treatment” was left blank.
2 She did not compellingly explain these inconsistencies. See
3 Majidi v. Gonzalez, 430 F.3d 77, 80 (2d Cir. 2005) (“A
4 petitioner must do more than offer a plausible explanation
5 for his inconsistent statements to secure relief; he must
6 demonstrate that a reasonable fact-finder would be compelled
7 to credit his testimony.” (internal quotations omitted)).
8 Having questioned Xue’s credibility as to past events
9 stemming from her alleged practice of Christianity, the
10 agency reasonably relied on her failure to corroborate her
11 claim that she continued to consistently practice
12 Christianity in the United States. “An applicant’s failure
13 to corroborate his or her testimony may bear on credibility,
14 because the absence of corroboration in general makes an
15 applicant unable to rehabilitate testimony that has already
16 been called into question.” Biao Yang v. Gonzales, 496 F.3d
17 268, 273 (2d Cir. 2007). The IJ reasonably concluded that
18 Xue had not provided adequate evidence to verify her claims
19 of regular attendance at several churches in the United
20 States, and the IJ was not compelled to credit her various
21 explanations for this failure. See Majidi, 430 F.3d at 80.
22 Further, the IJ also reasonably relied on the inconsistency
5
1 or lack of clarity in Xue’s testimony about her church
2 attendance while living in Florida. See 8 U.S.C.
3 § 1158(b)(1)(B)(iii). Moreover, Xue failed to call her
4 husband to testify to verify her church attendance in the
5 United States. See Yan Juan Chen v. Holder, 658 F.3d 246,
6 253 (2d Cir. 2011). And the agency did not err in requiring
7 such testimony without first providing notice and additional
8 time to present it. See Wei Sun v. Sessions, 883 F.3d 23,
9 29 (2d Cir. 2018) (deferring to the BIA’s determination that
10 an IJ is not required “to identify the specific evidence
11 necessary to meet the applicant’s burden of proof and to
12 provide an automatic continuance for the applicant to obtain
13 that evidence prior to rendering a decision on the
14 application”).
15 The IJ was not required to make an express finding about
16 Xue’s demeanor before determining that she was not credible.
17 A credibility assessment is based on “the totality of the
18 circumstances,” and an applicant’s demeanor is just one
19 factor that an IJ “may base a credibility determination on.”
20 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). The IJ’s
21 credibility determination here was supported by the
22 inconsistencies, omissions, and lack of corroboration
6
1 described above. Taken together, these inconsistencies,
2 omissions, and lack of reliable corroboration provide
3 substantial evidence for the agency’s adverse credibility
4 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii). That
5 determination is dispositive of asylum, withholding of
6 removal, and CAT relief because all three claims are based on
7 the same factual predicate. See Paul v. Gonzales, 444 F.3d
8 148, 156-57 (2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. All pending motions and applications are DENIED and
11 stays VACATED.
12
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe,
15 Clerk of Court
7