15-2368 

Shen v. Lynch 

BIA 

Nelson, IJ 

A200 173 943 

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 

31st 4 day of August, two thousand sixteen. 

5 

6 PRESENT: 

7 JON O. NEWMAN,

8 DENNIS JACOBS, 

9 GERARD E. LYNCH,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 SONGSHU SHEN, 

14 Petitioner, 

15 

16 v. 15-2368 

17 NAC 

18 LORETTA E. LYNCH, UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: David A. Bredin, Flushing, N.Y. 

24 

25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

26 Assistant Attorney General; Anthony 

27 P. Nicastro, Acting Assistant 

28 Director; Vanessa M. Otero, Trial 

29 Attorney, Office of Immigration 

30 Litigation, United States 

31 Department of Justice, Washington, 

32 D.C. 
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 is 

4 DENIED. 

5 Petitioner Songshu Shen, a native and citizen of the 

6 People’s Republic of China, seeks review of a June 26, 2015, 

7 decision of the BIA, affirming a November 20, 2013, decision 

8 of an Immigration Judge (“IJ”) denying Shen’s application for 

9 asylum, withholding of removal, and relief under the Convention 

10 Against Torture (“CAT”). In re Songshu Shen, No. A200 173 943 

11 (B.I.A. June 26, 2015), aff’g No. A200 173 943 (Immig. Ct. N.Y. 

12 City Nov. 20, 2013). We assume the parties’ familiarity with 

13 the underlying facts and procedural history in this case. 

14 Under the circumstances of this case, we review the IJ’s 

15 decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t 

16 of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable 

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

18 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 

19 (2d Cir. 2008). 

20 For asylum applications like Shen’s, governed by the REAL 

21 ID Act, the agency may, “[c]onsidering the totality of the 
3 

1 circumstances,” base a credibility finding on an asylum 

2 applicant’s “demeanor, candor, or responsiveness,” and 

3 inconsistencies in her or her witness’s statements, “without 

4 regard to whether” those inconsistencies go “to the heart of 

5 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu 

6 Xia Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s 

7 credibility determination unless, from the totality of the 

8 circumstances, it is plain that no reasonable fact-finder could 

9 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d 

10 at 167. As discussed below, substantial evidence supports the 

11 adverse credibility determination. 

12 The agency reasonably rested its adverse credibility 

13 determination on omissions from Shen’s application concerning 

14 the only incident of persecution she alleged. Id. at 166-67 

15 & n.3 (“An inconsistency and an omission are . . . functionally 

16 equivalent” for credibility purposes). Shen testified that a 

17 police officer smashed a book on her head and five other inmates 

18 beat her while detained. When asked why her application 

19 omitted these details, Shen responded that she considered being 

20 hit with the book less serious than what she had included in 

21 her application and that being beaten by the other inmates was 
4 

1 too “horrible for [her] to even recall.” The agency, however, 

2 was not required to credit Shen’s explanations. See Majidi v. 

3 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 

4 do more than offer a plausible explanation for his inconsistent 

5 statements to secure relief; he must demonstrate that a 

6 reasonable fact-finder would be compelled to credit his 

7 testimony.” (internal quotation marks and citation omitted)). 

8 The agency also did not err in concluding that Shen’s 

9 corroborating evidence was insufficient to rehabilitate her 

10 credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d 

11 Cir. 2007) (recognizing that “[a]n applicant’s failure to 

12 corroborate his . . . testimony may bear on credibility, 

13 because the absence of corroboration in general makes an 

14 applicant unable to rehabilitate testimony that has already 

15 been called into question” or is viewed as suspicious). The 

16 agency reasonably gave diminished weight to Shen’s mother’s 

17 letter: it was inconsistent with Shen’s testimony concerning 

18 when Shen started attending church in China, not notarized, and 

19 from an interested witness not subject to cross examination. 

20 See Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 

21 2010), rev’d on other grounds by Hui Lin Huang v. Holder, 677 
5 

1 F.3d 130 (2d Cir. 2012); see also Y.C. v. Holder, 741 F.3d 324, 

2 334 (2d Cir. 2013). The agency also reasonably found 

3 suspicious the absence of any testimony or statement from Shen’s 

4 husband. See Biao Yang, 496 F.3d at 273. Although Shen 

5 explained that her husband could not miss work and that she 

6 believed only persons with legal status could testify, this did 

7 not account for the absence of a statement. Cf. 8 

8 U.S.C. § 1252(b)(4) (“No court shall reverse a determination 

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

10 corroborating evidence . . . [unless] a reasonable trier of 

11 fact is compelled to conclude that such corroborating evidence 

12 is unavailable.”). 

13 Given the foregoing omissions and Shen’s insufficient 

14 corroborating evidence, the totality of the circumstances 

15 supports the credibility ruling. Xiu Xia Lin, 534 F.3d at 167. 

16 The omissions relate to substantial aspects of the sole incident 

17 of past alleged persecution. Because Shen’s claims for relief 

18 were based on the same factual predicate, the adverse 

19 credibility determination is dispositive of asylum, 

20 withholding of removal, and CAT relief. Paul v. Gonzales, 444 

21 F.3d 148, 156-57 (2d Cir. 2006). 
6 

1 For the foregoing reasons, the petition for review is 

2 DENIED. 

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk