20-1080

Li v. Garland

BIA

McCarthy, IJ

A206 291 068

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 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 20th 4 day of April, two thousand twenty-two.

5

6 PRESENT:

7 ROSEMARY S. POOLER,

8 ROBERT D. SACK,

9 RICHARD C. WESLEY,

10 Circuit Judges.

11 _____________________________________

12

13 JIAFENG LI,

14 Petitioner,

15

16 v. 20-1080

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

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

24

25 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 

26 Assistant Attorney General;

27 Russell J. E. Verby, Senior 

28 Litigation Counsel; John D. 

29 Williams, Trial Attorney, Office 

30 of Immigration Litigation, United 

31 States Department of Justice, 

32 Washington, DC.
2

1 UPON DUE CONSIDERATION of this petition for review of a 

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

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

4 is DENIED.

5 Petitioner Jiafeng Li, a native and citizen of the 

6 People’s Republic of China, seeks review of a March 18, 2020, 

7 decision of the BIA affirming a May 1, 2018, decision of an 

8 Immigration Judge (“IJ”) denying Li’s application for asylum, 

9 withholding of removal, and relief under the Convention 

10 Against Torture (“CAT”). In re Jiafeng Li, No. A206 291 068 

11 (B.I.A. Mar. 18, 2020), aff’g No. A206 291 068 (Immig. Ct. 

12 N.Y. City May 1, 2018). We assume the parties’ familiarity 

13 with the underlying facts and procedural history.

14 Under the circumstances, we have reviewed both the IJ’s 

15 and the BIA’s opinions. Wangchuck v. Dep’t of Homeland 

16 Security, 448 F.3d 524, 528 (2d Cir. 2006). The applicable 

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

18 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 

19 (2d Cir. 2018). 

20 “Considering the totality of the circumstances, and all 

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

22 determination on . . . the inherent plausibility of the 
3

1 applicant’s or witness’s account, the consistency between the 

2 applicant’s or witness’s written and oral statements 

3 (whenever made and whether or not under oath, and considering 

4 the circumstances under which the statements were made), the 

5 internal consistency of each such statement . . . , and any 

6 inaccuracies or falsehoods in such statements, without regard 

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

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

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

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

11 of the circumstances, it is plain that no reasonable fact12 finder could make such an adverse credibility ruling.” Xiu 

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

14 Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports 

15 the agency’s determination that Li was not credible as to her 

16 claim that family planning officials in China forced her to 

17 have an abortion in 2003.

18 The agency reasonably relied on Li’s submission to 

19 consular officials of a visa application, in which she knew 

20 the preparer of the application provided false employment and 

21 financial information. See 8 U.S.C. § 1158(b)(1)(B)(iii); 

22 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] 
4

1 single false document or a single instance of false testimony 

2 may (if attributable to the petitioner) infect the balance of 

3 the alien’s uncorroborated or unauthenticated evidence.”). 

4 Although use of fraudulent documents created to flee or evade 

5 persecution may support rather than refute an asylum claim, 

6 Li obtained her visa based on false information ten years 

7 after she allegedly suffered persecution and thus was not 

8 fleeing persecution. See Siewe, 480 F.3d at 170. Li’s

9 explanation that the preparer of her application lied was 

10 unavailing because she nonetheless attended a visa interview 

11 and obtained a visa knowingly based on false information 

12 thereby showing her willingness to lie to obtain immigration 

13 benefits. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Siewe, 

14 480 F.3d at 170. 

15 The agency also reasonably found inconsistent Li’s visa 

16 application, which stated that she had never been arrested, 

17 and her testimony that she was arrested once when she was 

18 forcibly taken for an abortion and a second time when she 

19 sought insurance compensation from the government. See

20 8 U.S.C. § 1158(b)(1)(B)(iii). Her explanation that she 

21 misunderstood the visa application was not compelling given 

22 that she continued to describe her detentions as arrests at 
5

1 her hearing. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d 

2 Cir. 2005) (“A petitioner must do more than offer a plausible 

3 explanation for his inconsistent statements to secure relief; 

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

5 compelled to credit his testimony.” (internal quotation marks

6 omitted)). 

7 The agency also reasonably relied further on Li’s 

8 inconsistent evidence about whether she had an abortion. Her 

9 U.S. medical records reported that she had an intra-uterine 

10 device in China, but not her alleged abortion. See 8 U.S.C. 

11 § 1158(b)(1)(B)(iii); see also Hong Fei Gao, 891 F.3d at 78 

12 (providing that “the probative value of a witness’s prior 

13 silence on particular facts depends on whether those facts 

14 are ones the witness would reasonably have been expected to 

15 disclose”). Her explanation for this omission was not 

16 compelling. See Majidi, 430 F.3d at 80.

17 Having questioned Li’s credibility, the agency 

18 reasonably relied further on her failure to rehabilitate her 

19 testimony with reliable corroborating evidence. See Biao 

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

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

22 bear on credibility, because the absence of corroboration in 
6

1 general makes an applicant unable to rehabilitate testimony 

2 that has already been called into question.”). In addition 

3 to her inconsistent medical record, the agency reasonably 

4 noted the absence of an affidavit or testimony from Li’s son 

5 who lives in the United States and could have confirmed that 

6 his mother was hospitalized when he was a child (although he 

7 did not know why) and whether he came to the United States to 

8 make it easier for Li to obtain a visa as she claimed. 

9 Given the false application, inconsistencies, and lack 

10 of reliable corroboration, the agency’s adverse credibility 

11 determination is supported by substantial evidence. See 

12 8 U.S.C. § 1158(b)(1)(B)(iii). That determination is 

13 dispositive of asylum, withholding of removal, and CAT relief

14 because all three claims were based on the same factual 

15 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d 

16 Cir. 2006). 

17 For the foregoing reasons, the petition for review is 

18 DENIED. All pending motions and applications are DENIED and 

19 stays VACATED.

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe,

22 Clerk of Court