15-4128 Tian v. Sessions BIA Poczter, IJ A205 825 148 

### 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 **7 th** **day of April, two thousand seventeen.** 4 5 **PRESENT:** 6 **RICHARD C. WESLEY,** 7 **DENNY CHIN,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **LI GUO TIAN,** 13 Petitioner **,** 14 15 **v. 15-4128** 16 **NAC** 17 **JEFFERSON B. SESSIONS III, UNITED** 18 **STATES ATTORNEY GENERAL,** 19 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Michael Brown, New York, NY. 24 25 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; Anthony 27 P. Nicastro, Assistant Director; 28 Jonathan Robbins, Senior Litigation 29 Counsel, Office of Immigration 30 Litigation, U.S. Department of 31 Justice, Washington, DC. 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 Li Guo Tian, a native and citizen of the People’s 5 Republic of China, seeks review of a December 10, 2015, decision 6 of the BIA affirming an August 20, 2014, decision of an 7 Immigration Judge (“IJ”) denying Tian’s application for asylum, 8 withholding of removal, and relief under the Convention Against 9 Torture (“CAT”). In re Li Guo Tian, No. A205 825 148 (B.I.A. 10 Dec. 10, 2015), aff’gNo. A205 825 148 (Immig. Ct. N.Y. City 11 Aug. 20, 2014). We assume the parties’ familiarity with the 12 underlying facts and procedural history in this case. 13

We have reviewed “the IJ’s decision as modified by the BIA.” 14 Lianping Li v. Lynch , 839 F.3d 144, 148 (2d Cir. 2016). The 15 applicable standards of review are well established. See 8 16 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder , 562 F.3d 510, 17 513 (2d Cir. 2009). 18 Under the REAL ID Act of 2005, the agency may, in light of 19 “the totality of the cir cumstances,” base an adverse 20 credibility determination on inconsistencies in an applicant’s 21 statements. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. 22 Mukasey , 534 F.3d 162, 165 (2d Cir. 2008). A single 233 inconsistency or omission that goes to the heart of a claim can 1 support an adverse credibility finding. See, e.g., Xian Tuan 2 Ye v. Dep’t of Homeland Sec. , 446 F.3d 289, 294-95 (2d Cir. 3 2006). Applying the “substantial evidence” standard of 4 review, “we defer . . . to an IJ’s credibility determination 5 unless, from the totality of the circumstances, it is plain that 6 no reasonable fact-finder could make such an adverse 7 credibility ruling.” Xiu Xia Lin , 534 F.3d at 167. 8 The ruling against Tian was sound. His asylum application 9 and testimony conflicted on a central point: his location when 10 his wife was seized for her second forced abortion. His asylum 11 application said that his wife was taken from a relative’s home 12 for a forced abortion and then returned to her home village, 13 and that, when Tian was rushing home after hearing the news, 14 he was spotted by family planning cadres who beat him and then 15 left. By contrast, he testified that he and his wife were home 16 together and were both taken to the hospital, where she was 17 forced to have an abortion and he was beaten and detained for 18 two days. “Drawing inferences from direct and circumstantial 19 evidence is a routine and necessary task of any factfinder.” 20 Siewe v. Gonzales , 480 F.3d 160, 167 (2d Cir. 2007). Based 21 on Tian’s differing descriptions of his own whereabouts and his 22 beating and detention, a critical juncture of his alleged past 234 persecution, the IJ was entitled to discredit Tian’s testimony. 1 Xian Tuan Ye , 446 F.3d at 294-95. 2 Tian characterizes the adverse credibility determination 3 as unfair, asserting that he was not given a chance to explain, 4 but the record reflects otherwise. Moreover, Tian’s 5 explanations were not compelling. Majidi v. Gonzales , 430 F.3d 6 77, 80 (2d Cir. 2005) (explaining that the agency is not required 7 to credit an explanation that is merely plausible or possible). 8 Tian explained that he was captured by the cadres while he was 9 en route to the relative’s house. Rather than clarifying the 10 sequence, these explanations muddled it: When his wife was 11 captured, was Tian on his way h ome, on his way to the relative’s 12 house, with his wife at the relative’s house, or in his home 13 village? Tian asks us to remand for the agency to credit a bit 14 of all those options; but on a petition for review, our task 15 is not to supplant the agency’s judgment. Xiao Ji Chen v. U.S. 16 Dep’t of Justice , 471 F.3d 315, 334–35 (2d Cir. 2006) (“[O]ur 17 limited role as an appellate court does not permit us to engage 18 in an independent evaluation of the cold record or ask ourselves 19 whether, if we were sitting as fact-finders in the first 20 instance, we would credit or discredit an applicant’s 21 testimony.”). 225 Tian also challenges the agency’s decision to give 1 diminished weight to the family planning committee document he 2 submitted, questioning why it was wrong to procure it for his 3 claim, and noting that there are different ways to authenticate 4 a document aside from the one laid out in agency regulations. 5 The IJ discounted the document on the ground that it was not 6 authenticated pursuant to an agency regulation, 8 C.F.R. 7 § 287.6(b). We have deemed that reason to be insufficient. 8 Cao He Lin v. U.S. Dep’t of Justice , 428 F.3d 391, 404–05 (2d 9 Cir. 2005) (finding “that the IJ erred by rejecting the notarial 10 birth certificate based on Cao’s failure to authenticate it 11 pursuant to ‘regulation’”). On the other hand, we give the 12 agency “considerable flexibility in determining the 13 authenticity of

. . . documents from the totality of the evidence 14 and in using documents found to be authentic in making an overall 15 assessment of the credibility of a petitioner’s testimony and, 16 ultimately, of [his] persecution claim.” Shunfu Li v. Mukasey , 17 529 F.3d 141, 149 (2d Cir. 2008). The agency decision under 18 review--that of the BIA--questioned Tian’s document for reasons 19 beyond regulatory authentication: it was unauthenticated by any 20 means, unsigned, and obtained for purposes of the litigation. 21 That was no abuse of discretion. Matter of H-L-H- & Z-Y-Z- , 22 25 I. & N. Dec. 209, 214 (B.I.A. 2010) (discounting village 236 committee documents that “were obtained for the purpose of the 1 hearing, are unsigned and unauthenticated and fail to even 2 identify the authors,” and acknowledging that the regulation 3 “does not provide the exclusive means for authenticating 4 documents in immigration proceedings”), remanded on other 5 grounds by Hui Lin Huang v. Holder , 677 F.3d 130 (2d Cir. 2012); 6 see also Siewe v. Gonzales , 480 F.3d 160, 170 (2d Cir. 2007) 7 (“[A] single false document or a single instance of false 8 testimony may (if attributable to the petitioner) infect the 9 balance of the alien’s uncorroborated or unauthenticated 10 evidence.”). The document reflected that Tian’s wife had two 11 abortions, which could not serve as a basis for Tian to get 12 asylum. Shi Liang Lin v. U.S. Dep’t of Justice , 494 F.3d 296, 13 299–300 (2d Cir. 2007). Even if credited, the document would 14 not cure the core inconsistency in Tian’s testimony about when, 15 where, and for how long he allegedly suffered harm. 16 For the foregoing reasons, the petition for review is 17 DENIED. As we have completed our rev iew, any stay of removal 18 that the Court previously granted in this petition is VACATED, 19 and any pending motion for a stay of removal in this petition 20 is DISMISSED as moot. Any pending request for oral argument 21 in this petition is DENIED in accordance with Federal Rule of 227 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 1 34.1(b). 2
FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4