Cui v. Lynch , 643 F. App'x 36 ( 2016 )

12-2236(L)
Cui v. Lynch
BIA
Nelson, IJ
A088 552 390
A088 552 391
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of March, two thousand sixteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 YING HUA CUI, GUANG HUI PIAO,
14 Petitioners,
15
16 v. 12-2236(L);
17 12-4171(Con)
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.*
22 _____________________________________
23
24
*
Loretta E. Lynch is automatically substituted as the
respondent in this case pursuant to Federal Rule of Appellate
Procedure 43(c)(2).
1 FOR PETITIONER: Theodore N. Cox (Joshua E. Bardavid,
2 on the brief), New York, NY.
3
4 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
5 Attorney General; Anh-Thu P. Mai-
6 Windle, Senior Litigation Counsel;
7 Jeffrey R. Meyer, Trial Attorney,
8 Office of Immigration Litigation,
9 United States Department of Justice,
10 Washington, D.C.
11
12 UPON DUE CONSIDERATION of these petitions for review of
13 decisions of the Board of Immigration Appeals (“BIA”), it is
14 hereby ORDERED, ADJUDGED, AND DECREED that the petitions for
15 review are DENIED.
16 Petitioners Ying Hua Cui and Guang Hui Piao, natives
17 and citizens of China, seek review of a May 9, 2012, order
18 of the BIA, affirming the July 10, 2008, decision of
19 Immigration Judge (“IJ”) Barbara A. Nelson, which denied
20 their application for asylum, withholding of removal, and
21 relief under the Convention Against Torture (“CAT”), In re
22 Ying Hua Cui, Guang Hui Piao, No. A088 552 390/391 (B.I.A.
23 May 9, 2012), aff’g No. A088 552 390/391 (Immig. Ct. N.Y.
24 City July 10, 2008), and a September 19, 2012, decision of
25 the BIA denying their motion to reconsider and reopen, In re
26 Ying Hua Cui, Guang Hui Piao, No. A088 552 390/391 (B.I.A.
27 Sept. 19, 2012). We assume the parties’ familiarity with
28 the underlying facts and procedural history in this case.
2
1 With respect to the initial denial of asylum,
2 withholding of removal, and CAT relief, we have reviewed
3 both the IJ’s and BIA’s opinions. See Yun-Zui Guan v.
4 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
5 standards of review are well-established. See 8 U.S.C.
6 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
7 (2d Cir. 2009).
8 For applications like Petitioners’, which are governed
9 by the REAL ID Act, the agency may base a credibility
10 finding on an applicant’s demeanor, the plausibility of his
11 account, and inconsistencies in his statements, without
12 regard to whether they go “to the heart of the applicant’s
13 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). We “defer [] to an
14 IJ’s credibility determination unless, from the totality of
15 the circumstances, it is plain that no reasonable
16 fact-finder could make such an adverse credibility ruling.”
17 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
18 Notwithstanding Petitioners’ assertions to the
19 contrary, we find insufficient grounds to overturn the
20 adverse credibility determination. The agency did not err
21 in relying on the omission of Petitioners’ arrest and
22 detention from Cui’s mother’s first letter. See id. at 166
23 n. 3 (providing that, for purposes of analyzing a
3
1 credibility determination, “[a]n inconsistency and an
2 omission are . . . functionally equivalent”). In their
3 brief, Petitioners concede that Cui’s mother’s first letter
4 did not directly mention their arrest but argue that the
5 incident can be inferred from references to being monitored
6 by police and Cui’s periodic police reporting obligations.
7 Although Petitioners are correct that the letter supports a
8 strong inference that their arrest and detention had in fact
9 occurred, because the agency’s inference “is tethered to the
10 evidentiary record, we will accord deference to the
11 finding.” See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d
12 Cir. 2007). Petitioners’ related contention, that the
13 agency failed to consider the letter’s status as a personal
14 communication rather than a document for court submission,
15 is also misplaced because Petitioners had the opportunity to
16 lay a foundation for the letter as a personal communication
17 but declined to do so.
18 Petitioners have also failed to show that the agency
19 ignored their corroborating evidence. See Xiao Ji Chen v.
20 U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)
21 (presuming that the agency “has taken into account all of
22 the evidence before [it], unless the record compellingly
23 suggests otherwise”). Indeed, the IJ explicitly considered
4
1 Cui’s cousin’s letter and discounted it based on a
2 reasonable inference that it failed to mention Petitioners’
3 arrests. Id.; see Siewe, 480 F.3d at 168-69. Similarly,
4 the agency explicitly considered Cui’s medical records and
5 reasonably determined that they did not indicate that she
6 suffered any injuries. See Xiao Ji Chen, 471 F.3d at 342
7 (noting that the weight accorded to the applicant’s evidence
8 in immigration proceedings lies largely within the
9 discretion of the agency). Moreover, the agency’s failure
10 to explicitly discuss a letter regarding Piao’s employment
11 does not compellingly suggest that the letter was ignored
12 because it merely indicated that Piao was fired for
13 participating in “illegal nation activity” and did not
14 confirm any arrest for harboring refugees. See Xiao Ji
15 Chen, 471 F.3d at 337 n.17; see also Zhi Yun Gao v. Mukasey,
16 508 F.3d 86, 87 (2d Cir. 2007) (noting that the agency is
17 not required to expressly “parse or refute on the record
18 each individual argument or piece of evidence offered by the
19 petitioner” (internal quotation marks omitted)).
20 Petitioners’ contention that the agency erred by
21 failing to perform an independent well-founded fear analysis
22 based solely on their harboring of North Korean refugees is
23 also misplaced. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
24 Cir. 2006). We have explained that a credibility-based
5
1 denial of a claim of past persecution will support the
2 denial of a claim of future persecution where “the only
3 evidence of a future threat to life or freedom was
4 petitioner’s contentions, which the IJ found not
5 believable,” id., and here, Petitioners have not identified
6 any evidence demonstrating a future threat absent their
7 incredible testimony that their harboring of refugees was
8 discovered by Chinese authorities. See Hongsheng Leng v.
9 Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (holding that “to
10 establish a well-founded fear of persecution in the absence
11 of any evidence of past persecution, an alien must make some
12 showing that authorities in his country of nationality are
13 either aware of his activities or likely to become aware of
14 his activities”). Accordingly, Petitioners have failed to
15 show that the agency erred by not conducting an independent
16 well-founded fear analysis based solely on their status as
17 North Korean refugee harborers. See Paul, 444 F.3d at 156.
18 Similarly, the agency did not fail to conduct an
19 independent CAT analysis, as the IJ separately addressed the
20 CAT claim in the final page of her decision and rejected it
21 because there was no indication that Cui was tortured in any
22 way or that it is likely she would be tortured if returned
23 to China. This determination was reasonable in light of
24 both the adverse credibility determination and the agency’s
6
1 uncontested finding that Cui did not allege serious
2 mistreatment while detained and was only required to
3 periodically report to police. See 8 C.F.R. § 1208.18(a)
4 (providing that torture under the CAT is “an extreme form of
5 cruel and inhuman treatment . . . specifically intended to
6 inflict severe physical or mental pain or suffering”); see
7 also Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004).
8 Nor did the BIA abuse its discretion by denying
9 reconsideration and reopening. See Kaur v. BIA, 413 F.3d
10 232, 233 (2d Cir. 2005) (per curiam); Jin Ming Liu v.
11 Gonzales, 439 F.3d 109, 111 (2d Cir. 2006).
12 As to reconsideration, as noted above, the agency did
13 not err in finding that Cui failed to demonstrate a
14 likelihood of torture upon her return to China, or in
15 denying relief on credibility grounds. Therefore, the BIA’s
16 denial of reconsideration does not compel remand, even
17 assuming errors in the agency’s alternative nexus
18 determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 150
19 (2d Cir. 2008) (noting that remand is futile when the Court
20 can “confidently [] predict that the agency would reach the
21 same decision absent” any errors that were made (internal
22 quotation marks omitted)).
23 Lastly, the BIA did not abuse its discretion in denying
24 reopening because Cui’s mother’s supplemental letter, which
7
1 corroborated Petitioners’ arrest and detention, could have
2 been provided at the time of Petitioners’ merits hearing.
3 See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings
4 shall not be granted unless it appears to the Board that
5 evidence sought to be offered is material and was not
6 available and could not have been discovered or presented at
7 the former hearing”); see also Norani v. Gonzales, 451 F.3d
8 292, 294 & n. 3 (2d Cir. 2006) (per curiam) (looking to the
9 date on which the IJ closed the hearing as the date before
10 which the evidence must have been unavailable,
11 undiscoverable, or unpresentable).
12 For the foregoing reasons, the petitions for review are
13 DENIED. As we have completed our review, the pending motion
14 for a stay of removal in these petitions is DISMISSED as
15 moot.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
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