14-2283 

Suo v. Lynch

BIA 

Vomacka, IJ 

A087 469 166

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 

5th day of January, two thousand sixteen. 

PRESENT: 

JOHN M. WALKER, JR.,

ROBERT D. SACK, 

REENA RAGGI,

Circuit Judges. 

_____________________________________ 

NAIYING SUO, 

 Petitioner, 

v. 14-2283 

 NAC 

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Dehai Zhang, Flushing, New York. 

FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant 

Attorney General; Claire L. Workman, 

Senior Litigation Counsel; Briena L. 

Strippoli, Trial Attorney, Office of 

Immigration Litigation, United 
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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 Naiying Suo, a native and citizen of the 

People’s Republic of China, seeks review of a June 12, 2014 

decision of the BIA affirming an October 21, 2013 decision of 

Immigration Judge (“IJ”) Alan A. Vomacka denying Suo’s 

application for asylum, withholding of removal, and relief 

under the Convention Against Torture (“CAT”). See In re 

Naiying Suo, No. A087 469 166 (B.I.A. June 12, 2014), aff’g No. 

A087 469 166 (Immig. Ct. N.Y.C. Oct. 21, 2013). Under the 

circumstances of this case, we review the IJ’s decision as 

modified and supplemented by the BIA decision, see Xian Tuan 

Ye v. DHS, 446 F.3d 289, 293, 296 (2d Cir. 2006), applying well 

established standards of review, see 8 U.S.C. § 1252(b)(4)(B); 

Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). In 

doing so, we assume the parties’ familiarity with the underlying 

facts and procedural history in this case. 
3

 For asylum applications such as Suo’s, governed by the REAL 

ID Act of 2005, the agency may, considering the totality of the 

circumstances, base a credibility finding on the plausibility 

of an asylum applicant’s account and inconsistencies in his 

statements, so long as they reasonably support an inference that 

he is not credible. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 

Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We defer “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 at 167. 

 The agency reasonably relied on implausible aspects of 

Suo’s claim, the discrepancies between his testimony and that 

of his witnesses, and his lack of relevant corroborating 

evidence in finding him not credible. We uphold an IJ’s 

implausibility findings unless we have a “definite and firm 

conviction that a mistake has been committed” and as long as 

the finding is “tethered to record evidence.” Wensheng Yan v. 

Mukasey, 509 F.3d 63, 67 (2d Cir. 2007); see Ming Xia Chen v. 

BIA, 435 F.3d 141, 145 (2d Cir. 2006). 
4

 Here, while Suo explained that after he was told not to 

practice Zhong Gong at work, he only practiced in isolated 

places when he thought no one was around, the IJ reasonably found 

that explanation implausible because Suo did not explain why 

he continued to practice while he was at work at all; he had 

claimed he was practicing Zhong Gong only for his health and 

so could have limited his practice to the safety of his home. 

See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (agency 

need not credit applicant’s explanation unless it would compel 

reasonable fact-finder to do so). 

 The agency’s finding that Suo and his witnesses were 

inconsistent as to Suo’s work history is also supported by 

substantial evidence based on discrepancies as to whether and 

when Suo worked in restaurants in New York, Minnesota, New 

Hampshire, or Massachusetts. In 2010, Suo testified that in 

2008 and 2009 he worked as a cook in New York and Minnesota. 

In 2013, he testified that before working in Minnesota he worked 

in New Hampshire and Massachusetts and he never worked in New 

York. Similarly, Suo’s two witnesses testified that they 

worked with him in New Hampshire and Massachusetts. 
5

 Having questioned Suo’s credibility, the agency reasonably 

relied further on his failure to provide relevant corroborating 

evidence sufficient to rehabilitate his testimony: Suo did not 

present any documentary evidence showing that he had been 

arrested and detained in China, and neither he nor his witnesses 

presented any documents to show that they had worked together 

at restaurants in New Hampshire and Massachusetts. “An 

applicant’s failure to corroborate his [] testimony may bear 

on credibility, 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). 

 Because substantial evidence supports the agency’s 

findings that Suo’s claim was implausible and his testimony 

inconsistent, we conclude that a totality of the circumstances 

supports the agency’s adverse credibility determination. See 

8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 

at 167. Further, because the only evidence of a threat to Suo’s 

life or freedom depended upon his credibility, the agency’s 

finding that he was not credible provided an adequate basis for 
6

denying him asylum, withholding of removal, and CAT relief. 

See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 

 For the foregoing reasons, the petition for review is 

DENIED. 

 FOR THE COURT: 

 Catherine O=Hagan Wolfe, Clerk of Court