20

- 1080 Li v. Garland BIA McCarthy , IJ A 206 291 068 

### 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the**  **Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **0 t**  **h d**  **a y of**  **A p**  **r i**  **l , two thousand**  **twenty**

**- two** 

**.** 4 5 **PRESENT:** 6 **ROSEMARY S. POOLER ,**  7 **ROBERT D. SACK ,**  8 **RICHARD C. WESLEY ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **JIAFENG LI ,**  13 **Petitioner ,**  14 15
**v. 20** 

**- 1080**  16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL**  **,** 19 **R espondent** 

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  Gary J. Yerman , New York , NY. 23 24 **FOR RESPONDENT:** Jeffrey Bossert Clark , Acting 25 Assistant Attorney General; 26 Russell J. E. Verby , Senior 27 Litigation Counsel ; John D. 28 Williams , Trial Attorney , Office 29 of Immigration Litigation , United 30 States Department of Justice, 31 Washington, DC. 322 U PON DUE CONSIDERATION of this petition for review of a 1
Board of Immigration Appeals (“BIA”) decision, it is hereby 2
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 3

is DENIED. 4

Petitioner Jiafeng Li , a native and citizen of the 5
People’s Republic of China , seeks review of a March 18, 2020 , 6
decision of the BIA affirming a May 1 , 2018 , decision of an 7

I mmigration Judge (“IJ”) d enying Li ’s application for asylum, 8
withholding of removal , and relief under the Convention 9
Against Torture (“CAT”). In re Jiafeng Li , No. A 206 291 068 10

(B.I.A. Mar. 18, 2020 ), aff’g No. A 206 291 068 (Immig. Ct. 11
N.Y. City May 1 , 2018 ). We assume the parties’ familiarity 12
with the underlying facts and procedural hi s tory. 13

Under the circumstances, we have reviewed both the IJ’s 14
and the BIA’s opinions. Wangchuck v. Dep’t of Homeland 15
Security , 448 F.3d 524, 528 (2d Cir. 2006). The applicable 16

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

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

(2d Cir. 2018). 19
“Considering the totality of the circumstances, and all 20
relevant factors, a trier of fact may base a credibility 21
determination on . . . the inherent plausibility of the 223 applicant’s or witness’s account, the consistency between the 1
applicant’s or witness’s written and oral statements 2
(whenever made and whether or not under oath, and considering 3

the circumstances under which the statements were made), the 4
internal consistency of each such statement . . . , and any 5

inaccuracies or falsehoods in such statements , without regard 6
to whether an inconsistency, inaccuracy, or falsehood goes to 7
the heart of the applicant’s claim, or any other relevant 8

factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to 9
an IJ’s credibility determination unless, from the totalit y 10
of the circumstances, it is plain that no reasonable fact

11
finder could make such an adverse credibility ruling.” Xiu 12
Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008) ; accord 13
Hong Fei Gao , 891 F.3d at 76. Substantial evidence supports 14
the agency’s d etermination that Li was not credible as to her 15

claim that family planning officials in China forced her to 16

have an abortion in 2003

. 17
The agency reasonably relied on Li’s submission to 18
consular officials of a visa application, in which she knew 19
the preparer of the application provided false employment and 20

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

Siewe v. Gonzales , 480 F .3d 160, 170 (2d Cir. 2007) (“[A] 224 single false document or a single instance of false testimony 1
may (if attributable to the petitioner) infect the balance of 2

the alien’s uncorroborated or unauthenticated evidence.”). 3
Although use of fraudulent documents c reated to flee or evade 4
persecution may support rather than refute an asylum claim, 5
Li obtained her visa based on false information ten years 6
after she allegedly suffered persecution and thus was not 7
fleeing persecution. See Siewe , 480 F.3d at 170. Li ’s 8
explanation that the preparer of her application lied was 9
unavailing because she nonetheless attended a visa interview 10
and obtained a visa knowingly based on false information 11
thereby showing her willingness to lie to obtain immigration 12

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

480 F.3d at 170. 14
The agency also reasonably found inconsistent Li’s visa 15
application, which stated that she had never been arrested, 16
and her testimony that she was arrested once when she was 17
forcibly taken for an abortion and a second time when she 18
sought insurance compensation from the government. See 19

8 U.S.C. § 1158(b)(1)(B)(iii). Her explanation that she 20
misunderstood the visa application was not compelling given 21

that she continued to describe her dete ntions as arrests at 225 her hearing. See Majidi v. Gonzales , 430 F.3d 77, 80 (2d 1
Cir. 2005) (“A petitioner must do more than offer a plausible 2
explanation for his inconsistent statements to secure relief; 3

he must demonstrate that a reasonable fact

- finder wou ld be 4
compelled to credit his testimony.” (internal quotation marks 5

omitted)). 6
The agency also reasonably relie d further on Li’s 7

inconsistent evidence about whether she had an abortion. H er 8

U.S. medical records reported that she had an intra

- uterine 9

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

§ 1158(b)(1)(B)(iii) ; see also Hong Fei Gao , 891 F.3d at 78 11
(providing that “the probative value of a witness’s prior 12
silence on particular facts depends on whether those facts 13
are ones the witness would reasonably have been expected to 14

disclose”). Her explanation for th is omission w as not 15
compelling. See Majidi , 430 F.3d at 80

. 16
Having questioned Li’s credibility, the agency 17
reasonably relied further on her failure to rehabilitate her 18
testimony with reliable corroborating evidence. See Biao 19
Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) (“An 20
applicant’s failure to corroborate his or her testimony may 21
bear on credibility, because the absence of corroboration in 226 general makes an applicant unable to rehabilitate testimony 1
that has already been called into question.”). In addition 2
to her inconsistent medical record, the agency re asonably 3
noted the absence of an affidavit or testimony from Li’s son 4

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

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

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

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

Given the false application, inconsistencies , and lack 9

of reliable corroboration, the agency’s adverse credibility 10
determination is supported by substantial evidence. See 11

8 U.S.C. § 1158(b)(1)(B)(iii). That determination i s 12
dispositive of asylum, withholding of removal, and CAT relief 13

because all three claims were based on the same fa ctual 14
predicate

. See Paul v. Gonzales , 444 F.3d 148, 156

– 57 (2d 15

Cir. 2006). 16
For the foregoing reasons, the petition for review is 17

DENIED . All pending motions and applications are DENIED and 18

stays VACATED. 19

FOR THE COURT: 20 Catherine O ’Hagan Wolfe , 21 Clerk of Court 22