19

- 541 Li v. Wilkinson BIA Conroy , IJ A 088 794 094 

### 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** 1 **for the Second Circuit, held at the**  **Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,**  3 **on the 25**  **th da**  **y of February,**  **two thousand twenty**  **- one**  **.** 4 5 **PRESENT:** 6 **PIERRE N. LEVAL ,**  7 **ROSEMARY S. POOLER ,**  8 **STEVEN J. MENASHI ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **ZU LUAN LI ,**  13 **Petitioner ,**  14 15
**v. 19** 
**- 541**  16 **NAC** 17 **R O**  **B E**  **R T**  **M .**  **WILKINSON ,**  **ACTING** 18 **UNITED S**  **TATES ATTORNEY GENERAL**  **,** ***** 19 **Respondent .**  20

**_____________________________________** 21 22 **FOR PETITIONER :**  Gary J. Yerman , Esq. , New York, 23 NY

. 24 25 26 * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General R o b e r t M

. 27 Wilkinson is automatically substituted for former Acting Attorney General Jeffrey A. Rosen as 28 Respondent. 292 **FOR RESPONDENT:** Jeffrey Bossert Clark , Acting 1 Assistant Attorney General ; Linda 2 S. Wernery , Assistant Director; 3 Monica M. Twombly , Trial Attorney, 4 Office of Immigration Litigation, 5 United States Department of 6 Justice, Washington, D C. 7

UPON DUE CONSIDERATION of this petition for review of a 8
Board of Immigration Appeals (“BIA”) decision, it is hereby 9
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 10

is DENIED

. 11

Petitioner Zu Luan Li , a native and citizen of the 12
People’s Republic of China , seeks review of a Fe bruary 7, 13

2019 , decision of the BIA affirming a November 15, 2017 , 14
decision of an Immigration Judge (“IJ”) denying asylum, 15
withholding of removal, and protection under the Convention 16
Against Torture (“CAT”)

. In re Zu Luan Li , No. A 088 794 094 17

(B.I.A. Feb. 7 , 201 9 ), aff’g No. A 088 794 094 (Immig. Ct. 18
N.Y. City Nov. 15 , 2017 ). We assume the parties’ familia rity 19
with the underlying facts and procedural history. 20

We have review ed both the IJ’s and BIA’s decisions “for 21
the sake of completeness.” Wangchuck v. Dep’t of Homeland 22

Sec. , 448 F.3d 524, 528 (2d Cir. 2006). The applicable 23

standards of review are well established

. See 8 U.S.C. 24

§ 1252(b)(4)(B); Hong Fei Gao v. Sessions , 891 F.3d 67, 76 253 (2d Cir. 2018) (reviewing adverse credibility determination 1
for substantial evidence). 2
“Considering the totality of the circumstances, and all 3

relevant factors, a trier of fact may base a credibility 4
determination on . . . the consistency between the applicant’s 5
. . . written and oral statements . . . , the internal 6
consistency of each such statement, the consistency of such 7

statements with other evidence of record

. . . without regard 8
to whether an inconsistency, inaccuracy, or falsehood goes to 9
the heart of the applicant’s claim, or any other relevant 10

factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to 11
an IJ’s credibility determination unless, from the to tality 12
of the circumstances, it is plain that no reasonable fact

13
finder could make such an adverse credibility ruling.” Xiu 14
Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008); accord 15
Hong Fei Gao , 891 F.3d at 76. The agency’s adverse 16
credibility determ ination is supported by substantial 17

evidence. 18
The agency reasonably relied on discrepancies between 19

Li’s statements at his credible fear interview and his 20
subsequent allegations of past persecution. See 8 U.S.C. 214 § 1158(b)(1)(B)(iii). As an initial matter, the interview 1
record was sufficiently reliable because there was a 2
telephonic interpreter, the questions and answers were 3

recorded verbatim in a typewritten document , the questions 4
were designed to elicit details of Li’s asylum claim, and 5

L i’s responses indicate that he understood the questions. 6

See Ming Zhang v. Holder , 585 F.3d 715, 724

– 25 (2d Cir. 2009)

. 7
And the agency reasonably relied on Li’s omission of 8
significant information that he subsequently asserted as the 9

basis of his claim

. At the interview, Li never mentioned 10
that he was arrested, detained for seven days in poor 11
conditions, and beaten. Id. at 726 (holding that agency may 12
“draw an adverse inference about petitioner’s credibility 13

based, inter alia , on h[is] failure to mentio n” important 14
details or events in prior statements); Hong Fei Gao , 891 15
F.3d at 78 (holding that “probative value of a witness’s prior 16
silence on particular facts depends on whether those facts 17
are ones the witness would reasonably have been expected to 18

dis close”). Li’s explanation that he was in distress during 19
his interview does not resolve these key omissions , and his 20
subsequent affidavit prepared to clarify his statements at 215 the interview reflects the same omissions

. See Majidi v. 1

Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 2
do more than offer a plausible explanation for his 3

inconsistent statements to secure relief; he must demonstrate 4

that a reasonable fact

- finder would be compelled to credit 5
his testimony.” (internal quota tion marks omitted)). 6
The agency also reasonably relied on Li’s internally 7
inconsistent testimony as to whether he had experienced 8
problems in China arising from something other than his 9
involvement in Falun Gong. On cross

- examination, Li said 10

that he did not despite testifying on direct to issues with 11
family planning authorities and submitting his wife’s asylum 12
application, which reflected that he had attempted to flee 13
China in 2004 to escape planning restrictions. 14
Having questioned Li’s credibilit y, the agency 15
reasonably relied on his failure to rehabilitate his 16
testimony with reliable corroborating evidence. S ee Biao 17
Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) (“An 18
applicant’s failure to corroborate his or her testimony may 19

bear on credibi lity, because the absence of corroboration in 20
general makes an applicant unable to rehabilitate testimony 216 that has already been called into question.”). The agency 1
did not err in declining to afford significant weight to 2
letters from Li’s family because h is family members were 3
interested parties and none of the authors were available for 4

cross
- examination. See Y.C. v. Holder , 741 F.3d 324, 332, 5
334 (2d Cir. 2013) (holding that weight of evidence is matter 6

of agency discretion and deferring to agency’s dec ision to 7
afford little weight to spouse’s letter because it was unsworn 8
and from an interested witness) ; s ee also In re H

- L

- H

- & Z

9

Y

- Z

- , 25 I. & N. Dec. 209, 215 (BIA 2010) (finding that 10
unsworn letters from alien’s friends and family did not 11
provide substantial support for alien’s claims because they 12
were from interested witnesses not subject to cross

13
examination), overruled on other gro unds by Hui Lin Huang v. 14

Holder , 677 F.3d 130, 133

- 38 (2d Cir. 2012)

. Similarly, Li’s 15
fellow Falun Gong practitioners in the United States were 16

either un available to testify or had never seen him practice 17
Falun Gong and his other evidence was not compelli ng: 18
photographs were undated and it was unclear who took them ; 19

and a fine receipt and police summons from China were 20

unauthenticated. S ee Matter of H

- L

- H

- & Z

- Y

- Z

- , 25 I. & N. 217 Dec. at 214 n.5 (“The failure to attempt to prove the 1
authenticity of a documen t . . . is significant.”); see also 2
Shunfu Li v. Mukasey , 529 F.3d 141, 149 (2d Cir. 2008) 3

( affording IJs “considerable flexibility in determining the 4
authenticity of . . . documents from the totality of the 5
evidence and in using documents found to be auth entic in 6
making an overall assessment of the credibility of a 7
petitioner’s testimony and, ultimately, of h[is] persecution 8
claim”). 9

Given the omission of the primary allegation of 10
persecution at his credible fear interview, the 11
inconsistencies within his testimony and clarifying 12

statements , and the lack of reliable corroboration, the 13
agency’s adverse credibility determination is supported by 14

substantial evidence

. 1 See 8 U.S.C. § 1158(b)(1)(B)(iii); 15

Xiu Xia Lin , 534 F.3d at 163

– 64. The adverse credibility 16
determination is dispositive of asylum, withholding of 17

1 We do not reach the IJ’s implausibility finding because the remaining findings provide substantial support for the agency’s decision

. See Gurung v. Barr , 929 F.3d 56, 62 (2d Cir. 2019) ( explaining that remand is futile “ whenever the reviewing panel is confident that the agency would reach the same result upon a reconsideration cleansed of errors” (inte rnal quotation marks omitted) ).8 removal, and CAT relief because all three forms of relief are 1
based on the same factual predicate. S ee Paul v. Gonzales , 2

444 F.3d 148, 156

– 57 (2d Cir. 2006). 3

For the for egoing reasons, the petition for review is 4

DENIED

. 5

6

FOR THE COURT: 7 Catherine O ’ Hagan Wolfe , 8 Clerk of Court 9