15-1140

Sun v. Lynch

BIA

Wright, IJ

A201 295 610

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 for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the

22nd 4 day of April, two thousand sixteen.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 Chief Judge,

9 DEBRA ANN LIVINGSTON,

10 SUSAN L. CARNEY,

11 Circuit Judges.

12 _____________________________________

13

14 QING SUN,

15 Petitioner,

16

17 v. 15-1140

18 NAC

19 LORETTA E. LYNCH, UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Lee Ratner, Law Offices of 

25 Michael Brown, New York, New York.

26

27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

28 Assistant Attorney General; Brianne 

29 Whelan Cohen, Senior Litigation 

30 Counsel; Stefanie A. Svoren-Jay, 
2

1 Trial Attorney, Office of 

2 Immigration Litigation, United 

3 States Department of Justice, 

4 Washington, D.C.

5

6 UPON DUE CONSIDERATION of this petition for review of a 

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

8 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

9 DENIED.

10 Petitioner Qing Sun, a native and citizen of China, seeks 

11 review of a March 16, 2015, decision of the BIA affirming an 

12 April 18, 2013, decision of an Immigration Judge (“IJ”) denying 

13 Sun‟s application for asylum, withholding of removal, and 

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

15 Qing Sun, No. A201 295 610 (B.I.A. Mar. 16, 2015), aff’g No. 

16 A201 295 610 (Immig. Ct. N.Y. City Apr. 18, 2013). We assume 

17 the parties‟ familiarity with the underlying facts and 

18 procedural history in this case.

19 Given the circumstances of this case, we have considered

20 both the IJ‟s and the BIA‟s opinions “for the sake of 

21 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 

22 524, 528 (2d Cir. 2006). The applicable standards of review 

23 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin 
3

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

2 Under the REAL ID Act of 2005, the agency may, in light of 

3 “the totality of the circumstances,” base an adverse 

4 credibility determination on, inter alia, the plausibility of 

5 an asylum applicant‟s account and inconsistencies in her 

6 statements, “without regard to whether” those inconsistencies 

7 go “to the heart of the applicant‟s claim . . . .” 8 U.S.C. 

8 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 

9 (2d Cir. 2008). Under the “substantial evidence” standard of 

10 review, “[w]e defer . . . to an IJ‟s credibility determination 

11 unless, from the totality of the circumstances, it is plain that 

12 no reasonable fact-finder could make such an adverse 

13 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.

14 The adverse credibility determination against Sun is 

15 sound. The agency justifiably relied on the record of Sun‟s 

16 credible fear interview. The record of the interview bore the 

17 hallmarks of reliability: the questions and answers about Sun‟s 

18 past harm and future fears were memorialized in a typewritten 

19 document. A Mandarin interpreter was used. Sun testified 

20 that she was “nervous” during the interview, but not that she 

21 was confused by any questions asked. See Ming Zhang v. Holder, 
4

1 585 F.3d 715, 724-25 (2d Cir. 2009) (requiring close scrutiny 

2 of credible fear interviews, but deeming reliable one that was 

3 typewritten, was conducted with an interpreter, demonstrated 

4 that the interviewee understood the questions, and included 

5 questions about past harm or fear of future harm).

6 We have advised that “adverse credibility determinations 

7 based on „discrepancies‟ with a credible fear interview should 

8 be examined with care to ensure that they are not arbitrary.” 

9 Id. at 725. Here, the determination was not arbitrary. At her 

10 credible fear interview, Sun was asked, “Who do you fear in the 

11 People‟s Republic of China?” and “Do you believe the government 

12 or anyone associated with the government of People‟s Republic 

13 of China, would want to harm you for any reason?” She never 

14 mentioned that she was caught distributing Falun Gong flyers, 

15 arrested, detained for four days, beaten, and given meager food. 

16 Contrary to Sun‟s argument, “[a]n inconsistency and an omission 

17 are,” for the purposes of a credibility determination, 

18 “functionally equivalent.” Xiu Xia Lin, 534 F.3d at 166 n.3. 

19 And here, the omission was significant: the Falun Gong incident 

20 was the crux of Sun‟s asylum claim. 

21 The agency reasonably found that Sun‟s varying 
5

1 explanations for the omission eroded her credibility further. 

2 In her asylum statement, Sun wrote that her snakehead told her 

3 not to mention the Falun Gong incident because, if she was sent 

4 back to China, the government “would more stringently punish”

5 her for having revealed its repressive tactics. At the merits 

6 hearing, she denied having written that passage and said that 

7 “maybe back at that time,” when she wrote the statement, she 

8 “was too nervous and made the mistake.” The agency was not 

9 compelled to credit this explanation, which did nothing to 

10 justify the original omission. Majidi v. Gonzales, 430 F.3d 

11 77, 80 (2d Cir. 2005) (stating that the agency is not required 

12 to credit an explanation that is merely plausible or possible). 

13 And that initial explanation conflicted with the one Sun offered 

14 at the merits hearing for her omission of the Falun Gong 

15 incident: because she “didn‟t know the point of view here in 

16 United States related to Falun Gong.” 

17 The IJ justifiably found both of Sun‟s conflicting 

18 explanations to be implausible. “[I]n assessing the 

19 credibility of an asylum applicant‟s testimony, an IJ is 

20 entitled to consider whether the applicant‟s story is 

21 inherently implausible.” Wensheng Yan v. Mukasey, 509 F.3d 63, 
6

1 66 (2d Cir. 2007). Such a finding cannot be based on “bald 

2 speculation or caprice.” Zhou Yun Zhang v. INS, 386 F.3d 66, 

3 74 (2d Cir. 2004) overruled on other grounds by Shi Liang Lin 

4 v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007). But one 

5 that is based on “speculation that inheres in inference is not 

6 „bald‟ if the inference is made available to the factfinder by 

7 record facts, or even a single fact, viewed in the light of 

8 common sense and ordinary experience.” Siewe v. Gonzales, 480 

9 F.3d 160, 168-69 (2d Cir. 2007). Here, common sense supports 

10 the IJ‟s inference: it strains credulity that a snakehead would 

11 instruct his charge not to divulge an incident of past 

12 persecution, or that Sun would flee China based on that incident 

13 without knowing whether it would be repeated in the United 

14 States.

15 The agency also reasonably cited various inconsistencies 

16 in Sun‟s account of the glass-throwing incident. At her 

17 credible fear interview, Sun said she “beat up somebody,” later 

18 clarifying that the “somebody” was the “staff of the government” 

19 and that she “took a glass and broke it over the head,” and later 

20 had to pay the “injured” person‟s medical expenses. At the 

21 merits hearing, she denied hitting the village cadre with the 
7

1 glass and suggested that she was falsely accused of injuring 

2 him. In addition, at one point she gave the wrong date for the 

3 incident (July rather than April). After being confronted with 

4 these and other inconsistencies, Sun testified that she was 

5 nervous at her credible fear interview (an explanation she 

6 continues to press here). The agency was not compelled to 

7 accept this explanation. Majidi, 430 F.3d at 80; see also Ming 

8 Zhang, 585 F.3d at 725 (“We again reject the notion that a 

9 petitioner‟s claim that she was nervous and distracted during 

10 the credible fear interview automatically undermines or negates 

11 its reliability as a source of her statements.”).

12 Given the omissions, inconsistencies, and 

13 implausibilities that cast doubt on whether the critical 

14 incident of alleged persecution occurred, the totality of the 

15 circumstances supports the agency‟s adverse credibility 

16 determination. Sun‟s applications for asylum, withholding of 

17 removal, and CAT relief were based on the same factual 

18 predicate, and so the adverse credibility determination was 

19 dispositive as to all three. See Paul v. Gonzales, 444 F.3d 

20 148, 156-57 (2d Cir. 2006). 

21 For the foregoing reasons, the petition for review is 
8

1 DENIED. As we have completed our review, any stay of removal 

2 that the Court previously granted in this petition is VACATED, 

3 and any pending motion for a stay of removal in this petition 

4 is DISMISSED as moot. Any pending request for oral argument 

5 in this petition is DENIED in accordance with Federal Rule of 

6 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

7 34.1(b).

8 FOR THE COURT: 

9 Catherine O=Hagan Wolfe, Clerk