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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **31 st**  **day of August, two thousand sixteen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **DENNIS JACOBS,** 8 **GERARD E. LYNCH,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **SONGSHU SHEN,** 13 Petitioner **,** 14 15 **v. 15-2368** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** David A. Bredin, Flushing, N.Y. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 25 Assistant Attorney General; Anthony 26 P. Nicastro, Acting Assistant 27 Director; Vanessa M. Otero, Trial 28 Attorney, Office of Immigration 29 Litigation, United States 30 Department of Justice, Washington, 31 D.C. 322 UPON 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 petition for review is 3

DENIED. 4 Petitioner Songshu Shen, a native and citizen of the 5 People’s Republic of China, seeks review of a June 26, 2015, 6 decision of the BIA, affirming a November 20, 2013, decision 7 of an Immigration Judge (“IJ”) denying Shen’s application for 8 asylum, withholding of removal, and relief under the Convention 9 Against Torture (“CAT”). In re Songshu Shen, No. A200 173 943 10 (B.I.A. June 26, 2015), aff’g No. A200 173 943 (Immig. Ct. N.Y. 11 City Nov. 20, 2013). We assume the parties’ familiarity with 12 the underlying facts and procedural history in this case. 13 Under the circumstances of this case, we review the IJ’s 14 decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t 15 of Justice , 426 F.3d 520, 522 (2d Cir. 2005). The applicable 16 standards of review are well established. 8 U.S.C. 17 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165-66 18 (2d Cir. 2008). 19 For asylum applications like Shen’s, governed by the REAL 20 ID Act, the agency may, “[c]onsidering the totality of the 213 circumstances,” base a credibility finding on an asylum 1 applicant’s “demeanor, candor, or responsiveness,” and 2 inconsistencies in her or her witness’s statements, “without 3 regard to whether” those inconsistencies go “to the heart of 4 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu 5 Xia Lin , 534 F.3d at 163-64. “We defer . . . to an IJ’s 6 credibility determination unless, from the totality of the 7 circumstances, it is plain that no reasonable fact-finder could 8 make such an adverse credibility ruling.” Xiu Xia Lin , 534 F.3d 9 at 167. As discussed below, substantial evidence supports the 10 adverse credibility determination. 11 The agency reasonably rested its adverse credibility 12 determination on omissions from Shen’s application concerning 13 the only incident of persecution she alleged. Id. at 166-67 14

& n.3 (“An inconsistency and an omission are . . . functionally 15 equivalent” for credibility purposes). Shen testified that a 16 police officer smashed a book on her head and five other inmates 17 beat her while detained. When asked why her application 18 omitted these details, Shen responded that she considered being 19 hit with the book less serious than what she had included in 20 her application and that being beaten by the other inmates was 214 too “horrible for [her] to even recall.” The agency, however, 1 was not required to credit Shen’s explanations. See Majidi v. 2 Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 3 do more than offer a plausible explanation for his inconsistent 4 statements to secure relief; he must demonstrate that a 5 reasonable fact-finder would be compelled to credit his 6 testimony.” (internal quotation marks and citation omitted)). 7 The agency also did not err in concluding that Shen’s 8 corroborating evidence was insufficient to rehabilitate her 9 credibility. See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d 10 Cir. 2007) (recognizing that “[a]n applicant’s failure to 11 corroborate his . . . testimony may bear on credibility, 12 because the absence of corroboration in general makes an 13 applicant unable to rehabilitate te stimony that has already 14 been called into question” or is viewed as suspicious). The 15 agency reasonably gave diminished weight to Shen’s mother’s 16 letter: it was inconsistent with Shen’s testimony concerning 17 when Shen started attending church in China, not notarized, and 18 from an interested witness not subject to cross examination. 19 See Matter of H-L-H- & Z-Y-Z- , 25 I. & N. Dec. 209, 215 (B.I.A. 20 2010), rev’d on other grounds by Hui Lin Huang v. Holder , 677 215 F.3d 130 (2d Cir. 2012); see also Y.C. v. Holder , 741 F.3d 324, 1 334 (2d Cir. 2013). The agency also reasonably found 2 suspicious the absence of any testimony or statement from Shen’s 3 husband. See Biao Yang , 496 F.3d at 273. Although Shen 4 explained that her husband could not miss work and that she 5 believed only persons with legal status could testify, this did 6 not account for the absence of a statement. Cf. 8 7 U.S.C. § 1252(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 10 fact is compelled to conclude that such corroborating evidence 11 is unavailable.”). 12 Given the foregoing o missions and Shen’s insufficient 13 corroborating evidence, the totality of the circumstances 14 supports the credibility ruling. Xiu Xia Lin , 534 F.3d at 167. 15 The omissions relate to substantial aspects of the sole incident 16 of past alleged persecution. Because Shen’s claims for relief 17 were based on the same factual predicate, the adverse 18 credibility determination is dispositive of asylum, 19 withholding of removal, and CAT relief. Paul v. Gonzales , 444 20 F.3d 148, 156-57 (2d Cir. 2006). 216 For the foregoing reasons, the petition for review is 1

DENIED. 2
FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4