Ye v. Sessions ( 2018 )

13-2905
Ye v. Sessions
BIA
Cheng, IJ
A099 531 181
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
23rd day of February, two thousand eighteen.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
MING X. YE,
Petitioner,
v. 13-2905
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Michael Brown, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant
Attorney General; David V. Bernal,
Assistant Director; Lance L. Jolley,
Trial Attorney, Office of
Immigration Litigation, U.S.
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 Ming X. Ye, a native and citizen of the People’s
Republic of China, seeks review of a July 26, 2013 decision of
the BIA affirming a December 1, 2011 decision of an Immigration
Judge (“IJ”) denying Ye’s application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”), and declining to remand for consideration of new
evidence. In re Ming X. Ye, No. A099 531 181 (B.I.A. July 26,
2013), aff’g No. A099 531 181 (Immig. Ct. N.Y. City Dec. 1,
2011). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
Under the circumstances of this case, we have considered
the decision of the IJ as modified and supplemented by the BIA
(minus the burden finding and including the motion to remand).
See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
(2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2005). The applicable standards of review are well
established. 8 U.S.C. § 1252(b)(4); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008); Li Yong Cao v. U.S. Dep’t
of Justice, 421 F.3d 149, 156-57 (2d Cir. 2005).
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Adverse Credibility Determination
“Considering the totality of the circumstances, . . . a
trier of fact may base a credibility determination on the
demeanor, candor, or responsiveness of the applicant or
witness, . . . the consistency between the applicant’s or
witness’s written and oral statements . . ., the internal
consistency of each such statement, [and] the consistency of
such statements with other evidence of record . . . 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 163-64.
Substantial evidence supports the agency’s determination that
Ye was not credible regarding his claims that he was detained
and beaten in China for participating in an unregistered
Christian church and that he feared future harm in that country
on account of his continued practice of Christianity.
In making the credibility determination, the IJ reasonably
relied on Ye’s demeanor, noting that he was unresponsive
regarding what happened to him after his release from detention
in China and where he resided in the United States. See
8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77,
81 n.1 (2d Cir. 2005). The overall credibility determination
is bolstered by inconsistencies in the record related to Ye’s
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detention, residence, and church attendance. See Li Hua Lin
v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006); see
also Xiu Xia Lin, 534 F.3d at 165-66. Furthermore, although
basing a credibility finding on an applicant’s lack of doctrinal
knowledge can sometimes be erroneous, it was reasonable for the
agency to do so here. Ye’s inability to testify about
Christmas, which conflicted with his assertions that he had
practiced Christianity for three years and that he had taken
numerous baptismal preparation courses, supported the adverse
credibility determination. See Rizal v. Gonzales, 442 F.3d 84,
90 (2d Cir. 2006) (providing that there may be “instances in
which the nature of an individual applicant’s account would
render his lack of a certain degree of doctrinal knowledge
suspect and could therefore provide substantial evidence in
support of an adverse credibility finding”).
Given these findings, the agency’s adverse credibility
determination is supported by substantial evidence and is
dispositive of Ye’s claims for asylum, withholding of removal,
and CAT relief. See 8 U.S.C. § 1158(b)(1)(B)(iii); Paul v.
Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
Two aspects of the IJ’s opinion, however, merit further
comment. First, the IJ pointed out that the certificate from
the church in China, which attested to the petitioner’s church
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attendance, made no mention of his arrest, and that this
“omission” from the author of the church certificate was a
factor bearing on the credibility of the petitioner. Certified
Administrative Record (“CAR”) 113. However, the church
official was asked to certify only the petitioner’s church
attendance. No one asked him to confirm the arrest. The
reasoning makes about as much sense as if we were to doubt the
validity of the IJ’s opinion because it “omitted” any statement
that he had been duly appointed.
Second, the IJ also doubted the petitioner’s credibility
because eight years after the mother’s death, the son showed
the father a death certificate that listed the death as
occurring in May 2001, yet the father’s letter, written three
months after the son’s conversation, says that the death
occurred in April 2001. CAR 114. The IJ provides no
explanation as why a one-month error by the father in reporting
an event occurring eight years earlier provides a basis for
doubting the credibility of the petitioner.
These matters provide no basis for a remand, however,
because the IJ reasonably concluded that the petitioner’s
encounter with the police, though unpleasant, did not rise to
the level of persecution, CAR 168, and because, even if the
petitioner were found credible, id., his petition would be
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denied because his claimed fear of future persecution was not
objectively reasonable. CAR 169-70.
New Evidence
The BIA also did not err in declining to consider the
evidence Ye submitted for the first time on appeal, intended
to explain inconsistencies and demeanor at his initial
proceeding, because he did not file the requisite motion to
remand. See 8 C.F.R. § 1003.1(d)(3)(iv); In re Fedorenko, 19
I. & N. Dec. 57, 74 (B.I.A. 1984). Regardless, the BIA
reasonably concluded that Ye’s evidence did not warrant remand.
Motions to remand based on new evidence are governed by the rules
for motions to reopen, and a movant’s failure to proffer
previously unavailable evidence or demonstrate his prima facie
eligibility for relief are permissible grounds for denying a
motion to remand. Li Yong Cao, 421 F.3d at 156.
Evidence of Ye’s grandmother’s illness was available
before the merits hearing, and Ye failed to demonstrate that
this evidence would impact the outcome of his proceedings.
Despite multiple opportunities to explain inconsistencies at
the hearing, neither Ye nor his aunt mentioned that they were
distracted by a family illness, stating instead that they were
nervous. Accordingly, the BIA did not abuse its discretion in
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declining to consider Ye’s evidence submitted for the first time
on appeal. See id.For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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