19-541

Li v. Wilkinson

BIA

Conroy, IJ

A088 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.

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, 

on the 25th 4 day of February, two thousand twenty-one.

5

6 PRESENT:

7 PIERRE N. LEVAL,

8 ROSEMARY S. POOLER,

9 STEVEN J. MENASHI,

10 Circuit Judges.

11 _____________________________________

12

13 ZU LUAN LI,

14 Petitioner,

15

16 v. 19-541

17 NAC

18 ROBERT M. WILKINSON, ACTING 

19 UNITED STATES ATTORNEY GENERAL,*

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Gary J. Yerman, Esq., New York, 

24 NY.

25

26

27 * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Robert M.

28 Wilkinson is automatically substituted for former Acting Attorney General Jeffrey A. Rosen as 

29 Respondent.
2

1 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 

2 Assistant Attorney General; Linda 

3 S. Wernery, Assistant Director; 

4 Monica M. Twombly, Trial Attorney, 

5 Office of Immigration Litigation, 

6 United States Department of 

7 Justice, Washington, DC.

8 UPON DUE CONSIDERATION of this petition for review of a 

9 Board of Immigration Appeals (“BIA”) decision, it is hereby 

10 ORDERED, ADJUDGED, AND DECREED that the petition for review 

11 is DENIED.

12 Petitioner Zu Luan Li, a native and citizen of the 

13 People’s Republic of China, seeks review of a February 7, 

14 2019, decision of the BIA affirming a November 15, 2017, 

15 decision of an Immigration Judge (“IJ”) denying asylum, 

16 withholding of removal, and protection under the Convention 

17 Against Torture (“CAT”). In re Zu Luan Li, No. A 088 794 094 

18 (B.I.A. Feb. 7, 2019), aff’g No. A 088 794 094 (Immig. Ct. 

19 N.Y. City Nov. 15, 2017). We assume the parties’ familiarity 

20 with the underlying facts and procedural history.

21 We have reviewed both the IJ’s and BIA’s decisions “for 

22 the sake of completeness.” Wangchuck v. Dep’t of Homeland 

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

24 standards of review are well established. See 8 U.S.C. 

25 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 
3

1 (2d Cir. 2018) (reviewing adverse credibility determination 

2 for substantial evidence). 

3 “Considering the totality of the circumstances, and all 

4 relevant factors, a trier of fact may base a credibility 

5 determination on . . . the consistency between the applicant’s 

6 . . . written and oral statements . . . , the internal 

7 consistency of each such statement, the consistency of such 

8 statements with other evidence of record . . . without regard 

9 to whether an inconsistency, inaccuracy, or falsehood goes to 

10 the heart of the applicant’s claim, or any other relevant 

11 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to 

12 an IJ’s credibility determination unless, from the totality 

13 of the circumstances, it is plain that no reasonable fact14 finder could make such an adverse credibility ruling.” Xiu 

15 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord 

16 Hong Fei Gao, 891 F.3d at 76. The agency’s adverse 

17 credibility determination is supported by substantial 

18 evidence.

19 The agency reasonably relied on discrepancies between 

20 Li’s statements at his credible fear interview and his 

21 subsequent allegations of past persecution. See 8 U.S.C. 
4

1 § 1158(b)(1)(B)(iii). As an initial matter, the interview 

2 record was sufficiently reliable because there was a 

3 telephonic interpreter, the questions and answers were 

4 recorded verbatim in a typewritten document, the questions 

5 were designed to elicit details of Li’s asylum claim, and 

6 Li’s responses indicate that he understood the questions. 

7 See Ming Zhang v. Holder, 585 F.3d 715, 724–25 (2d Cir. 2009). 

8 And the agency reasonably relied on Li’s omission of 

9 significant information that he subsequently asserted as the 

10 basis of his claim. At the interview, Li never mentioned 

11 that he was arrested, detained for seven days in poor 

12 conditions, and beaten. Id. at 726 (holding that agency may 

13 “draw an adverse inference about petitioner’s credibility 

14 based, inter alia, on h[is] failure to mention” important 

15 details or events in prior statements); Hong Fei Gao, 891 

16 F.3d at 78 (holding that “probative value of a witness’s prior 

17 silence on particular facts depends on whether those facts 

18 are ones the witness would reasonably have been expected to 

19 disclose”). Li’s explanation that he was in distress during 

20 his interview does not resolve these key omissions, and his 

21 subsequent affidavit prepared to clarify his statements at 
5

1 the interview reflects the same omissions. See Majidi v. 

2 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 

3 do more than offer a plausible explanation for his 

4 inconsistent statements to secure relief; he must demonstrate 

5 that a reasonable fact-finder would be compelled to credit 

6 his testimony.” (internal quotation marks omitted)). 

7 The agency also reasonably relied on Li’s internally 

8 inconsistent testimony as to whether he had experienced

9 problems in China arising from something other than his 

10 involvement in Falun Gong. On cross-examination, Li said 

11 that he did not despite testifying on direct to issues with 

12 family planning authorities and submitting his wife’s asylum 

13 application, which reflected that he had attempted to flee 

14 China in 2004 to escape planning restrictions. 

15 Having questioned Li’s credibility, the agency 

16 reasonably relied on his failure to rehabilitate his 

17 testimony with reliable corroborating evidence. See Biao 

18 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An 

19 applicant’s failure to corroborate his or her testimony may 

20 bear on credibility, because the absence of corroboration in 

21 general makes an applicant unable to rehabilitate testimony 
6

1 that has already been called into question.”). The agency 

2 did not err in declining to afford significant weight to 

3 letters from Li’s family because his family members were 

4 interested parties and none of the authors were available for 

5 cross-examination. See Y.C. v. Holder, 741 F.3d 324, 332, 

6 334 (2d Cir. 2013) (holding that weight of evidence is matter 

7 of agency discretion and deferring to agency’s decision to 

8 afford little weight to spouse’s letter because it was unsworn 

9 and from an interested witness); see also In re H-L-H- & Z10 Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (finding that 

11 unsworn letters from alien’s friends and family did not 

12 provide substantial support for alien’s claims because they 

13 were from interested witnesses not subject to cross14 examination), overruled on other grounds by Hui Lin Huang v. 

15 Holder, 677 F.3d 130, 133-38 (2d Cir. 2012). Similarly, Li’s 

16 fellow Falun Gong practitioners in the United States were 

17 either unavailable to testify or had never seen him practice 

18 Falun Gong and his other evidence was not compelling: 

19 photographs were undated and it was unclear who took them; 

20 and a fine receipt and police summons from China were 

21 unauthenticated. See Matter of H-L-H- & Z-Y-Z-, 25 I. & N. 
7

1 Dec. at 214 n.5 (“The failure to attempt to prove the 

2 authenticity of a document . . . is significant.”); see also 

3 Shunfu Li v. Mukasey, 529 F.3d 141, 149 (2d Cir. 2008) 

4 (affording IJs “considerable flexibility in determining the 

5 authenticity of . . . documents from the totality of the 

6 evidence and in using documents found to be authentic in 

7 making an overall assessment of the credibility of a 

8 petitioner’s testimony and, ultimately, of h[is] persecution 

9 claim”).

10 Given the omission of the primary allegation of 

11 persecution at his credible fear interview, the

12 inconsistencies within his testimony and clarifying 

13 statements, and the lack of reliable corroboration, the 

14 agency’s adverse credibility determination is supported by 

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

16 Xiu Xia Lin, 534 F.3d at 163–64. The adverse credibility 

17 determination is dispositive of asylum, withholding of 

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” (internal quotation marks 

omitted)).
8

1 removal, and CAT relief because all three forms of relief are 

2 based on the same factual predicate. See Paul v. Gonzales, 

3 444 F.3d 148, 156–57 (2d Cir. 2006).

4 For the foregoing reasons, the petition for review is 

5 DENIED.

6

7 FOR THE COURT: 

8 Catherine O’Hagan Wolfe,

9 Clerk of Court