Dong v. Sessions ( 2018 )

16-3211
Dong v. Sessions
BIA
Christensen, IJ
A205 607 648
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
28th day of February, two thousand eighteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_____________________________________
YAN DONG,
Petitioner,
v. 16-3211
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Louis H. Klein, Flushing, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Briena L.
Strippoli, Senior Litigation
Counsel; John M. McAdams, Jr., Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
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 Yan Dong, a native and citizen of the People’s
Republic of China, seeks review of an August 26, 2016, decision
of the BIA affirming a November 25, 2014, decision of an
Immigration Judge (“IJ”) denying Dong’s application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Yan Dong, No. A 205 607 648 (B.I.A. Aug.
26, 2016), aff’g No. A 205 607 648 (Immig. Ct. N.Y. City Nov.
25, 2014). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed the
decisions of both the BIA and the IJ. Yun-Zui Guan v. Gonzales,
432 F.3d 391, 394 (2d Cir. 2005). The standards of review are
well established. See 8 U.S.C. § 1252(b)(4); Xiu Xia Lin v.
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Mukasey, 534 F.3d 162, 165 (2d Cir. 2008); Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
I. Adverse Credibility Determination
The agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on inconsistencies
and omissions in an asylum applicant’s statements and other
record evidence, “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); Xiu Xia Lin, 534 F.3d
at 166-67. “A petitioner must do more than offer a plausible
explanation for [her] inconsistent statements to secure relief;
[s]he must demonstrate that a reasonable fact-finder would be
compelled to credit [her] testimony.” Majidi v. Gonzales, 430
F.3d 77, 80 (2d Cir. 2005) (internal quotation marks omitted)
(emphasis in original). Substantial evidence supports the
agency’s determination that Dong was not credible.
The agency reasonably relied on inconsistencies and
omissions in Dong’s two written statements, her testimony, and
letters from her parents, all of which called into question her
claim that she was a whistleblower in China and fled to the
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United States and became politically active for that reason.
Dong was inconsistent about how or if she resigned from her job.
She testified that she immediately tried to resign after
reporting government corruption, but her employer refused to
permit her resignation. In contrast, one written statement
reported that she resigned after her employer failed to pay her
for two months. The IJ was not required to accept Dong’s
explanation—that she thought that by leaving China, she
effectively resigned from the company—because the written
statement does not link her resignation with her departure from
China. See Majidi, 430 F.3d at 80.
Discrepancies in Dong’s statements also call into question
her allegations that the government was monitoring and
threatening her. Her second written statement asserted
Chinese officials constantly called her mother in early 2010
to ask about Dong’s whereabouts. But that statement omits
Dong’s trips to the United States and her voluntary returns to
China. The agency did not err in relying on this omission. See
Kone v. Holder, 596 F.3d 141, 150-51 (2d Cir. 2010) (holding
that, considering context, voluntary return trips may be
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considered as a factor in an adverse credibility
determination). Dong’s explanation—that she returned to China
in part because she thought the Chinese government would no
longer be interested in her—was not compelling because she also
alleged that authorities had been constantly calling her mother
just months earlier. See Majidi, 430 F.3d at 80.
Dong’s letters from her parents further undermine her
credibility because of the information they omit. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166-67.
Although Dong’s mother refers to threatening telephone calls
she received and discusses Dong’s political activities in the
United States, her letter omits Dong’s earlier trips to the
United States, and both letters omit Dong’s allegation that
Chinese authorities handcuffed and threatened her father with
imprisonment to prevent Dong from disclosing more government
corruption. Despite Dong’s contention that these omissions
are irrelevant because they concern the period before she joined
the China Democracy Party in the United States, the agency was
permitted to rely on them. See Xiu Xia Lin, 534 F.3d at 167(reasoning that “an IJ may rely on any inconsistency or omission
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in making an adverse credibility determination” and upholding
reliance on omissions and inconsistencies stemming from
letters).
Given these inconsistencies and omissions, substantial
evidence supports the adverse credibility determination. See
8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 165-66.
II. Future Persecution Based on CDP Activities
To meet her burden of showing a well-founded fear of future
persecution, Dong had to show a subjective fear of persecution
that was objectively reasonable. Ramsameachire v. Ashcroft,
357 F.3d 169, 178 (2d Cir. 2004); Jian Xing Huang v. U.S. INS,
421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid
support in the record,” an asylum applicant’s fear of
persecution is “speculative at best.”). She could either
establish a reasonable possibility that she would be singled
out individually for persecution or “a pattern or practice .
. . of persecution of a group of persons similarly situated to
the applicant on account of . . . political opinion.” 8 C.F.R.
§ 1208.13(b)(2)(iii); Y.C. v. Holder, 741 F.3d 325, 332 (2d Cir.
2013). Because Dong’s CDP activities occurred in the United
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States, she had to show that Chinese authorities were either
already aware, or likely to become aware, of her prodemocracy
activities. Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d
Cir. 2008).
Dong did not meet that burden. She argues that she
testified credibly that Chinese police had visited her parents
to warn them that she would be questioned on returning to China
if she continued her activism. She points to letters from her
parents stating that the authorities had warned the family that
they were aware of Dong’s CDP activities. But the agency did
not err in extending the adverse credibility determination to
these assertions. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d
Cir. 2007) (reasoning that “a single false document or a single
instance of false testimony may (if attributable to the
petitioner) infect the balance of the alien’s uncorroborated
or unauthenticated evidence”). Moreover, the letters were the
same ones that contained discrepancies about past events in
China.
Nor did Dong demonstrate a reasonable possibility that
Chinese authorities were likely to become aware of her
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prodemocracy activism and to persecute her on that basis. The
fact that she posted internet articles and that her photograph
was on the CDP’s website is not enough. See Y.C., 741 F.3d at
333-34, 336-37. Dong’s letters from the president of CDP refer
to persecution of individuals who were predominately leaders
of the prodemocracy movement or Democratic Party workers who
were active in China. The only country conditions evidence in
the record provides no further support: the 2013 State
Department report reflected that China detained and mistreated
political dissidents active in China, including members of the
“banned Chinese Democracy Party,” but did not identify any
incidents in which individuals who engaged in prodemocracy
activism in the United States were arrested or otherwise
mistreated upon returning to China. Because Dong failed to
demonstrate an objectively reasonable fear of persecution as
needed for asylum, she also failed to meet the higher burdens
of proof for withholding of removal and CAT relief. Id. at 335.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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