15-1840 

Li v. Lynch 

BIA 

Van Wyke, IJ 

A089 225 043 

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 

29th 4 day of November, two thousand sixteen. 

5 

6 PRESENT: 

7 RICHARD C. WESLEY,

8 DENNY CHIN, 

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 TIAN DI LI, 

14 Petitioner, 

15 

16 v. 15-1840 

17 NAC 

18 LORETTA E. LYNCH, UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Aminat Sabak (Yevgeny Samokhleb, on 

24 the brief), Law Offices of Yu & 

25 Associates, PLLC, New York, N.Y. 

26 

27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

28 Assistant Attorney General; Margaret 

29 Kuehne Taylor, Senior Litigation 

30 Counsel; Kate D. Balaban, Trial 

31 Attorney, Office of Immigration 
2 

1 Litigation, United States Department 

2 of Justice, Washington, D.C. 

3 

4 UPON DUE CONSIDERATION of this petition for review of a Board 

5 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, 

6 ADJUDGED, AND DECREED that the petition for review is DENIED. 

7 Petitioner Tian Di Li, a native and citizen of China, seeks 

8 review of a May 19, 2015, decision of the BIA, affirming an April 

9 25, 2013, decision of an Immigration Judge (“IJ”) denying Li’s 

10 application for asylum, withholding of removal, and relief under 

11 the Convention Against Torture (“CAT”). In re Tian Di Li, No. 

12 A089 225 043 (B.I.A. May 19, 2015), aff’g No. A089 225 043 (Immig. 

13 Ct. N.Y. City Apr. 25, 2013). We assume the parties’ familiarity 

14 with the underlying facts and procedural history in this case. 

15 Under the circumstances of this case, we have reviewed both 

16 the IJ’s and the BIA’s decisions. Yun-Zui Guan v. Gonzales, 432 

17 F.3d 391, 394 (2d Cir. 2005). The applicable standards of review 

18 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 

19 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 

20 Asylum applications like Li’s are governed by the REAL ID 

21 Act, which provides that an agency may, “[c]onsidering the 

22 totality of the circumstances,” base a credibility finding on 

23 an applicant’s “demeanor, candor, or responsiveness,” the 

24 plausibility of his account, and inconsistencies in his 
3 

1 statements and other record evidence “without regard to whether” 

2 those inconsistencies go “to the heart of the applicant’s claim.” 

3 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. 

4 “We defer . . . to an IJ’s credibility determination unless . 

5 . . it is plain that no reasonable fact-finder could make such 

6 an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. 

7 Further, “[a] petitioner must do more than offer a plausible 

8 explanation for his inconsistent statements to secure relief; 

9 he must demonstrate that a reasonable fact-finder would be 

10 compelled to credit his testimony.” Majidi v. Gonzales, 430 

11 F.3d 77, 80 (2d Cir. 2005) (internal quotation marks omitted). 

12 Substantial evidence supports the agency’s determination that 

13 Li was not credible. 

14 The agency reasonably based its credibility determination 

15 in small part on inconsistencies between Li’s testimony and tax 

16 returns that report where he has lived since arriving in the 

17 United States. See Xiu Xia Lin, 534 F.3d at 167 (“[A]n IJ may 

18 rely on any inconsistency or omission in making an adverse 

19 credibility determination as long as the ‘totality of the 

20 circumstances’ establishes that an asylum applicant is not 

21 credible.”); Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) 

22 (“[E]ven where an IJ relies on discrepancies or lacunae that, 
4 

1 if taken separately, concern matters ‘collateral or ancillary 

2 to the claim,’ the cumulative effect may nevertheless be deemed 

3 consequential by the fact-finder.” (citation omitted)). Li 

4 testified that he lived in New York since arriving in the United 

5 States and that he attended church in New York once a week, and 

6 he submitted letters from his New York church stating that Li 

7 attends Sunday masses when his work permits. However, one of 

8 Li’s tax forms provides an Illinois residence. The agency 

9 reasonably rejected Li’s explanation that he sometimes helped 

10 his sister in Chicago with her work because it did not explain 

11 why he listed an Illinois residence on his tax return. See 

12 Majidi, 430 F.3d at 80. The agency also reasonably found this 

13 inconsistency material because it called into question Li’s 

14 claim of weekly church attendance in New York. See Xiu Xia Lin, 

15 534 F.3d at 167; Tu Lin, 446 F.3d at 402. 

16 The agency reasonably relied further on Li’s failure to 

17 corroborate his practice of Christianity. “An applicant’s 

18 failure to corroborate his . . . testimony may bear on 

19 credibility, because the absence of corroboration in general 

20 makes an applicant unable to rehabilitate testimony that has 

21 already been called into question” or is suspicious. Biao Yang 

22 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Here, the agency 
5 

1 reasonably found Li’s credibility undermined by his inability 

2 to provide a witness (either in person or by phone) to corroborate 

3 his practice of Christianity. The agency did not err in 

4 rejecting Li’s explanations for why he could not provide such 

5 a witness—they were busy and had to work—because they were not 

6 sufficiently compelling. See Majidi, 430 F.3d at 80; cf. 8 

7 U.S.C. § 1254(b)(4) (“No court shall reverse a determination 

8 made by a trier of fact with respect to the availability of 

9 corroborating evidence . . . [unless] a reasonable trier of fact 

10 is compelled to conclude that such corroborating evidence is 

11 unavailable.”). 

12 Additionally, the agency reasonably relied on 

13 inconsistency between Li’s claim of past persecution and the 

14 country conditions evidence. See Xiu Xia Lin, 534 F.3d at 

15 166-67. Li testified that he was detained for 17 days with 10 

16 fellow parishioners, interrogated, and beaten after police 

17 raided his small, house church gathering in Fujian Province. 

18 However, the agency reasonably concluded that the few instances 

19 of similar mistreatment in Fujian Province documented in the 

20 country conditions evidence related to house church leaders. 

21 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 

22 (2d Cir. 2006) (holding that the weight accorded to State 
6 

1 Department reports lies largely within the discretion of the 

2 agency). The agency did not err by placing “excessive reliance” 

3 on the State Department 2010 International Religious Freedom 

4 Report because it also considered “contrary or countervailing 

5 evidence . . . as well as the particular circumstances of the 

6 [Li]’s case.” See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 

7 391, 403-04 (2d Cir. 2005) (internal quotation marks omitted). 

8 The IJ explained that he credited the State Department report 

9 because Li’s testimony about his past harm was unpersuasive and 

10 he failed to produce a witness to corroborate his practice of 

11 Christianity in China or the United States. 

12 However, in affirming the credibility determination we 

13 decline to rely on the IJ’s demeanor finding. “[D]emeanor is 

14 paradigmatically the sort of evidence that a fact-finder is best 

15 positioned to evaluate,” Li Zu Guan v. INS, 453 F.3d 129, 140 

16 (2d Cir. 2006), and we therefore give “particular deference to 

17 credibility determinations that are based on the adjudicator’s 

18 observation of the applicant’s demeanor,” Jin Chen v. U.S. Dep’t 

19 of Justice, 426 F.3d 104, 113 (2d Cir. 2005). We have observed, 

20 however, that we “can be still more confident in our review of 

21 observations about an applicant’s demeanor where . . . they are 

22 supported by specific examples of inconsistent testimony.” Li 
7 

1 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006). 

2 Although the IJ found that Li’s testimony often “mimicked” his 

3 asylum application, and that Li struggled to recount details 

4 of his claim that were not stated explicitly therein, the IJ 

5 did not support this observation with examples of specific 

6 testimony or citations to the record. The weight placed by the 

7 IJ on the demeanor finding is also unclear because he appears 

8 to have faulted the Government for failing to elicit further 

9 details on cross-examination. Even assuming that this finding 

10 was erroneous, however, we can confidently predict that the 

11 agency would adhere to its decision because the remainder of 

12 the credibility determination is supported by substantial 

13 evidence. See Xiao Ji Chen, 471 F.3d at 338-39 (holding that 

14 remand is futile when the Court can “confidently predict” that 

15 the agency would reach the same decision absent any errors). 

16 Given the inconsistency and corroboration findings, the 

17 totality of the circumstances supports the adverse credibility 

18 determination. See Xiu Xia Lin, 534 F.3d at 167. The 

19 credibility determination is dispositive of Li’s claims for 

20 asylum, withholding of removal, and CAT relief because all claims 

21 relied on the same factual predicate. See Paul v. Gonzales, 444 

22 F.3d 148, 156-57 (2d Cir. 2006). 
8 

1 For the foregoing reasons, the petition for review is 

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

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

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

5 is DISMISSED as moot. Any pending request for oral argument in 

6 this petition is DENIED in accordance with Federal Rule of 

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

8 34.1(b). 

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk