18

- 3381 Li v. Rosen BIA Zagzoug , IJ A 206 054 736 

### 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**  **ELE CTRONIC 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 4**  **t h**  **d a**  **y of J**  **a n**  **u a**  **r y**  **, two thousand**  **twenty -**  **o n**  **e .**  4 5 **PRESENT:** 6 **JOSÉ A. CABRANES ,**  7 **ROBERT D. SACK ,**  8 **DENNY CHIN ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **XIAO FANG LI ,**  13 **Petitioner ,**  14 15
**v. 18** 
**- 3381**  16 **NAC** 17 **J E**  **F F**  **R E**  **Y A**  **. R**  **O S**  **E N**  **, A**  **C T**  **I N**  **G UNITED**  18 **STATES ATTORNEY GENERAL**  **,** 19 **Respondent .**  **1** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  John S. Yong, Esq. , New York , NY

. 23 24 **FOR RESPONDENT:** Jeffrey Bossert Clark , Acting 25 Assistant Attorney General ; Mary 26

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General J effrey A. Rosen is automatically substituted for former Attorney General W illi am P. Ba rr as Respondent.2 Jane Candaux , Assistant Director ; 1 Stephanie E. Beckett , Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 D C. 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 petitio n for review 9

is DENIED

. 10

Petitioner Xiao Fang Li , a native and citizen of the 11
People’s Republic of China , seeks review of a n October 24 , 12

2018 , decision of the BIA that affirm ed a n October 24 , 2017 , 13
decision of an Immigration Judge (“IJ”) denying asylum, 14
withholding of removal, and relief und er the Convention 15
Against Torture (“CAT”) , and denied Li’s motion to remand

. 16

In re Xiao Fang Li , No. A 206 054 736 (B.I.A. Oct. 24 , 2018 ), 17
aff’g No. A 206 054 736 (Immig. Ct. N.Y. City Oct. 24 , 2017 ). 18
We assume the parties’ familiarity with the underlying facts 19
and procedural history. 20
Under the circumstances, we have review ed the IJ’s 21
decision as supplemented by the BIA. See Yan Chen v. 22

Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). 23

243 **A. Adverse Credibility Determination**  1
The applicable standards of review are well est ablished. 2

See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions , 891 3
F.3d 67, 76 (2d Cir. 2018). “Considering the totality of the 4
circumstances, and all relevant factors, a trier of fact may 5
base a credibility determinati on on the demeanor, candor, or 6
responsiveness of the applicant or witness, the inherent 7
plausibility of the applicant’s or witness’s account, the 8
consistency between the applicant’s or witness’s written and 9
oral statements . . . , the internal consistency of each such 10
statement . . . without regard to whether an inconsistency, 11
inaccuracy, or falsehood goes to the heart of the applicant’s 12

claim , or any other relevant factor .” 8 U.S.C. 13

§ 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey , 534 14

F.3d 162, 163

– 64 (2d Cir. 2008). “We defer . . . to an IJ’s 15
credibility determination unless, from the totality of the 16
circumstances, it is plain that no reasonable fact

- finder 17
could make such an adverse credibility ruling.” Xiu Xia Lin , 18

534 F.3d a t 167; accord Hong Fei Gao , 891 F.3d at 76. 19
Substantial evidence supports the agency’s determination that 20

Li was not credible as to her claim that police detained and 214 beat her and sought to arrest her a second time for practicing 1
Christianity in an unregi stered church in China

. 2
The IJ reasonably relied in part on Li’s flat, hesitant, 3

and evasive demeanor

. See 8 U.S.C. § 1 158(b)(1)(B)(iii); see 4
also Majidi v. Gonzales , 430 F.3d 77, 81 n.1 (2d Cir. 2005). 5
That finding is supported by the record , which shows Li’s 6
lengthy pauses and failure to respond to questions despite 7
affirmation that she understood the questions being posed. 8
Further, Li’s longest pauses and lack of responsiveness 9

occurred when she was asked to provide details material to 10

her claim of past persecution , which she never provided, or 11
was questioned about implausible aspects of her story

. The 12
IJ was not compelled to credit Li’s explanation that she was 13
nervous because her nervousness did not prevent her from 14
answering general que stions about her claim and her inability 15
to provide details despite multiple opportunities further 16
impugned her credibility. See Majidi , 430 F.3d at 80 (“A 17
petitioner must do more than offer a plausible explanation 18

for his inconsistent statements to secur e relief; he must 19

demonstrate that a reasonable fact

- finder would be compelled 20
to credit his testimony.” (internal quotation marks 215 omitted)); see also Jin Shui Qiu v. Ashcroft , 329 F.3d 140, 1
152 (2d Cir. 2003) (“Where an applicant gives very spare 2
testimony . . . the IJ . . . may fairly wonder whether the 3
testimony is fabricated .” ), overruled in part on other 4
grounds by Shi Liang Lin v. U.S. Dep’t of Justice , 494 F.3d 5
296, 305 (2d Cir. 2007). 6
The IJ’s demeanor finding and adverse credibility 7

deter mination as a whole w ere further supported by Li’s 8
inconsistent and implausible testimony regarding the severity 9
of her beating and her ability to travel unrestricted while 10
police sought to arrest her

. See 8 U.S.C. 11

§ 1158(b)(1)(B)(iii); see also Li Hua Li n v. U.S. Dep’t of 12

Justice , 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still 13

more confident in our review of observations about an 14
applicant’s demeanor where, as here, they are supported by 15
specific examples of inconsistent testimony.”)

. 16
Having question ed Li’s credibility, the agency 17
reasonably relied on her failure to rehabilitate her 18
credibility with reliable corroborating evidence. “An 19
applicant’s failure to corroborate his or her testimony may 20
bear on credibility, because the absence of corroboratio n in 216 general makes an applicant unable to rehabilitate testimony 1
that has already been called into question.” Biao Yang v. 2

Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). First, the IJ 3
reasonably noted that a letter from Li’s purported 4
underground church in China did not corroborate her claim and 5
further impugned her credibility because it was written on 6
printed letterhead and stamped with an official church seal 7
even though the church was unregistered and secretive and the 8

letter did not mention the two raids on the church or the 9
arrest of practitioners

. S ee Y.C. v. Holder , 741 F.3d 324, 10
334 (2d Cir. 2013) (“We defer to the agency’s determination 11
of the weight a fforded to an alien’s documentary evidence.”); 12
see also Hong Fei Gao , 891 F.3d at 78 (“The probative value 13
of a witness’s . . . silence on particular facts depends on 14
whether those facts are ones the witness would reasonably 15
have been expected to disclose. ”). The agency also 16
reasonably declined to credit unsworn letters from Li’s 17

father and church friend in China , her boyfriend’s testimony 18
about their church attendance in the United States, and a 19

letter from a church elder in the United States because th is 20
evidence was provided by interested witnesses or by 217 individuals who were not made available for cross

1

examination. S ee Y.C. , 741 F.3d at 332, 334; see also In re 2

H

- L

- H

- & Z

- Y

- Z

- , 25 I. & N. Dec. 209, 215 (B.I.A. 2010) 3
(finding that letters from alien’s f riends and family were 4
insufficient to provide substantial support for alien’s 5
claims because they were from interested witnesses not 6
subject to cross

- examination), overruled on other grounds by 7
Hui Lin Huang v. Holder , 677 F.3d 130, 133

– 38 (2d Cir. 2012). 8
Given the demeanor, inconsistency, implausibility, and 9
corroboration findings, the adverse credibility determination 10
is supported by substantial evidence. See Xiu Xia Lin , 534 11

F.3d at 165

– 66. That determination is dispositive of asylum, 12
withholding o f removal, and CAT relief because all three 13
claims are based on the same factual predicate. See Paul v. 14

Gonzales , 444 F.3d 148, 156

– 57 (2d Cir. 2006). Accordingly, 15

we do not consider the agency’s alternative burden finding. 16
See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) (“As a general 17
rule courts and agencies are not required to make findings on 18
issues the decision of which is unnecessary to the results 19
they reach.”). 20

218 **B. Moti**  **on to Remand** 1

We review the BIA’s denial of a motion to remand for 2

abuse of discretion. Li Yong Cao v. U.S. Dep’t of Justice , 3
421 F.3d 149, 157 (2d Cir. 2005). The BIA may deny a motion 4
to remand based on a movant’s failure to show prima facie 5
eligibilit y for relief. See i d. ; see also 8 C.F.R. 6

§ 1003.2(c)(1). The BIA did not abuse its discretion in 7
denying Li’s motion to remand to adjust to lawful permanent 8
resident status because, as she admits in her opening brief, 9

she is not currently eligible for th at relief

. See Li Yong 10

Cao , 421 F.3d at 156. 11
For the foregoing reasons, the petition for review is 12

DENIED

. All pending motions and applications are DENIED and 13

stays VACATED. 14

FOR THE COURT: 15 Catherine O ’ Hagan Wolfe , 16 Clerk of Court 17