15

- 1140

Sun v. Lynch BIA Wright , IJ A 201 295 610 

### 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 COU RT, 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 1 the Second Circuit, held at the Thurgood Marshall United States 2 Courthouse, 40 Foley Square, in the City of New York, on the 3 22 nd da y of April , two thousand sixteen

. 4 5 PRESENT: 6 ROBERT A. KATZMANN , 7 Chief Judge, 8 DEBRA ANN LIVINGSTON , 9 SUSAN L. CARNEY , 10 Circuit Judges. 11

_____________________________________ 12 13 QING SUN , 14 Petitioner , 15 16

v. 15

- 1140 17 NAC 18 LORETTA E. LYNCH , UNITED STATES 19 ATTORNEY GENERAL , 20 Respondent

. 21

_____________________________________ 22 23 FOR PETITIONER : Lee Ratner , Law Offices of 24 Michael Brown, New York, New York

. 25 26 FOR RESPONDENT: Benjamin C. Mizer , Principal Deputy 27 Assistant Attorney General; Brianne 28 Whelan Cohen, Senior Litigation 29 Counsel; Stefanie A. Svoren

- Jay, 302 Trial Attorney, Office of 1 Immigration Litigation , United 2 States Department of Justice, 3 Washington, D.C. 4 5 UPON DUE CONSIDERATION of this pe tition for review of a 6

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

ORDERED, ADJUDGED, AND DECREED that the petitio n for review is 8

DENIED

. 9

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

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

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

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

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

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

A201 295 610 (Immig. Ct. N.Y. City Apr

. 18, 2013 ). We assume 16

the parties‟ familiarity with the underlying facts and 17

procedural history in this case. 18

Given the circumstances of this case, we have consider ed 19

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

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

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

are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin 233

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

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

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

credibility determination on , inter alia, the plausibility of 4

an asylum applicant‟s account and inconsistencies in her 5

statements, “without regard to whet her” those inconsistencies 6

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

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

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

review, “ [w]e defer

. . . to an IJ‟s cred ibility determination 10

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

no reasonable fact

- finder could make such an adverse 12

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

The adverse credibility determination against Sun i s 14

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

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

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

past harm and future fears were memorialized in a typewritten 18

document. A Mand arin interpreter was used. Sun testified 19

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

was confused by any questions asked. See Ming Zhang v. Holder , 214

585 F.3d 715, 724

- 25 (2d Cir. 2009) (requiring close scrutiny 1

of credible fear interview s, but deeming reliable one that was 2

typewritten, was conducted with an interpreter, demonstrated 3

that the interviewee understood the questions, and included 4

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

We have advised that “adverse credibility determinations 6

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

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

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

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

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

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

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

mentioned that she wa s caught distributing Falun Gong flyers, 14

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

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

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

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

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

was the crux of Sun‟s asylum claim. 20

The agency reasonably found that Sun‟s varying 215

explanations for the omission eroded her credibility further. 1

In her asyl um statement, Sun wrote that her snakehead told her 2

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

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

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

hearing, she de nied having written that passage and said that 6

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

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

compelled to credit this explanation, which did nothing to 9

justify the original omission

. Majidi v. Gonzales , 430 F.3d 10

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

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

And that initial explanation conflicted with the one Sun offered 13

at the merits hearing for her o mission of the Falun Gong 14

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

United States related to Falun Gong.” 16

The IJ justifiably found both of Sun‟s conflicting 17

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

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

entitled to consider whether the applicant‟s story is 20

inherently implausible.” Wensheng Yan v. Mukasey , 509 F.3d 63, 216

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

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

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

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

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

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

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

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

F.3d 160, 168

- 69 (2d Cir. 2007). Here, common sense supports 9

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

instruct his charge not to divulge an incident of past 11

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

without knowing whether it would be repeated in the United 13

States. 14

The agency also reasonably cited various inconsistencies 15

in Sun‟s account of the glass

- throwing incident. At her 16

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

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

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

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

merits hearing, she denied hitting the village cadre with the 217

glass and suggested that she was falsely accused of injuring 1

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

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

these and other inconsistencies, Sun testified that she was 4

nervous at her credible fear interview (an explanation she 5

continues to press here ). Th e agency was not compelled to 6

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

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

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

the credible fear interview automatically undermines or negates 10

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

Given the omissions, inconsistencies, and 12

implausibilities that cast doubt on whether the critical 13

incident of alleged persecution occurred, the totality of the 14

circumstances supports the agency‟s adverse credibility 15

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

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

predicate, and so the adverse credibility determination was 18

dispositive as to all three

. See Paul v. Gon zales , 444 F.3d 19

148, 156

- 57 (2d Cir. 2006). 20

For the foregoing reasons, the petition for review is 218

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

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

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

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

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

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

34.1(b). 7

F OR THE COURT: 8 Catherine O = Hagan Wolfe, Clerk 9