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.

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 

7th 4 day of April, two thousand seventeen. 

5 

6 PRESENT: 

7 RICHARD C. WESLEY,

8 DENNY CHIN, 

9 SUSAN L. CARNEY,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 LI GUO TIAN, 

14 Petitioner, 

15 

16 v. 15-4128 

17 NAC 

18 JEFFERSON B. SESSIONS III, UNITED 

19 STATES ATTORNEY GENERAL, 

20 

21 Respondent. 

22 _____________________________________ 

23 

24 FOR PETITIONER: Michael Brown, New York, NY. 

25 

26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

27 Assistant Attorney General; Anthony 

28 P. Nicastro, Assistant Director; 

29 Jonathan Robbins, Senior Litigation 

30 Counsel, Office of Immigration 

31 Litigation, U.S. Department of 

32 Justice, 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 is 

4 DENIED. 

5 Petitioner Li Guo Tian, a native and citizen of the People’s 

6 Republic of China, seeks review of a December 10, 2015, decision 

7 of the BIA affirming an August 20, 2014, decision of an 

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

9 withholding of removal, and relief under the Convention Against 

10 Torture (“CAT”). In re Li Guo Tian, No. A205 825 148 (B.I.A. 

11 Dec. 10, 2015), aff’g No. A205 825 148 (Immig. Ct. N.Y. City 

12 Aug. 20, 2014). We assume the parties’ familiarity with the 

13 underlying facts and procedural history in this case. 

14 We have reviewed “the IJ’s decision as modified by the BIA.” 

15 Lianping Li v. Lynch, 839 F.3d 144, 148 (2d Cir. 2016). The 

16 applicable standards of review are well established. See 8 

17 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 

18 513 (2d Cir. 2009). 

19 Under the REAL ID Act of 2005, the agency may, in light of 

20 “the totality of the circumstances,” base an adverse 

21 credibility determination on inconsistencies in an applicant’s 

22 statements. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. 

23 Mukasey, 534 F.3d 162, 165 (2d Cir. 2008). A single 
3

1 inconsistency or omission that goes to the heart of a claim can 

2 support an adverse credibility finding. See, e.g., Xian Tuan 

3 Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 294-95 (2d Cir. 

4 2006). Applying the “substantial evidence” standard of 

5 review, “we defer . . . to an IJ’s credibility determination 

6 unless, from the totality of the circumstances, it is plain that 

7 no reasonable fact-finder could make such an adverse 

8 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. 

9 The ruling against Tian was sound. His asylum application 

10 and testimony conflicted on a central point: his location when 

11 his wife was seized for her second forced abortion. His asylum 

12 application said that his wife was taken from a relative’s home 

13 for a forced abortion and then returned to her home village, 

14 and that, when Tian was rushing home after hearing the news, 

15 he was spotted by family planning cadres who beat him and then 

16 left. By contrast, he testified that he and his wife were home 

17 together and were both taken to the hospital, where she was 

18 forced to have an abortion and he was beaten and detained for 

19 two days. “Drawing inferences from direct and circumstantial 

20 evidence is a routine and necessary task of any factfinder.” 

21 Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007). Based 

22 on Tian’s differing descriptions of his own whereabouts and his 

23 beating and detention, a critical juncture of his alleged past 
4

1 persecution, the IJ was entitled to discredit Tian’s testimony. 

2 Xian Tuan Ye, 446 F.3d at 294-95. 

3 Tian characterizes the adverse credibility determination 

4 as unfair, asserting that he was not given a chance to explain, 

5 but the record reflects otherwise. Moreover, Tian’s 

6 explanations were not compelling. Majidi v. Gonzales, 430 F.3d 

7 77, 80 (2d Cir. 2005) (explaining that the agency is not required 

8 to credit an explanation that is merely plausible or possible). 

9 Tian explained that he was captured by the cadres while he was 

10 en route to the relative’s house. Rather than clarifying the 

11 sequence, these explanations muddled it: When his wife was 

12 captured, was Tian on his way home, on his way to the relative’s 

13 house, with his wife at the relative’s house, or in his home 

14 village? Tian asks us to remand for the agency to credit a bit 

15 of all those options; but on a petition for review, our task 

16 is not to supplant the agency’s judgment. Xiao Ji Chen v. U.S. 

17 Dep’t of Justice, 471 F.3d 315, 334–35 (2d Cir. 2006) (“[O]ur 

18 limited role as an appellate court does not permit us to engage 

19 in an independent evaluation of the cold record or ask ourselves 

20 whether, if we were sitting as fact-finders in the first 

21 instance, we would credit or discredit an applicant’s 

22 testimony.”). 
5

1 Tian also challenges the agency’s decision to give 

2 diminished weight to the family planning committee document he 

3 submitted, questioning why it was wrong to procure it for his 

4 claim, and noting that there are different ways to authenticate 

5 a document aside from the one laid out in agency regulations. 

6 The IJ discounted the document on the ground that it was not 

7 authenticated pursuant to an agency regulation, 8 C.F.R. 

8 § 287.6(b). We have deemed that reason to be insufficient. 

9 Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404–05 (2d 

10 Cir. 2005) (finding “that the IJ erred by rejecting the notarial 

11 birth certificate based on Cao’s failure to authenticate it 

12 pursuant to ‘regulation’”). On the other hand, we give the 

13 agency “considerable flexibility in determining the 

14 authenticity of . . . documents from the totality of the evidence 

15 and in using documents found to be authentic in making an overall 

16 assessment of the credibility of a petitioner’s testimony and, 

17 ultimately, of [his] persecution claim.” Shunfu Li v. Mukasey, 

18 529 F.3d 141, 149 (2d Cir. 2008). The agency decision under 

19 review--that of the BIA--questioned Tian’s document for reasons 

20 beyond regulatory authentication: it was unauthenticated by any 

21 means, unsigned, and obtained for purposes of the litigation. 

22 That was no abuse of discretion. Matter of H-L-H- & Z-Y-Z-, 

23 25 I. & N. Dec. 209, 214 (B.I.A. 2010) (discounting village 
6

1 committee documents that “were obtained for the purpose of the 

2 hearing, are unsigned and unauthenticated and fail to even 

3 identify the authors,” and acknowledging that the regulation 

4 “does not provide the exclusive means for authenticating 

5 documents in immigration proceedings”), remanded on other 

6 grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); 

7 see also Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) 

8 (“[A] single false document or a single instance of false 

9 testimony may (if attributable to the petitioner) infect the 

10 balance of the alien’s uncorroborated or unauthenticated 

11 evidence.”). The document reflected that Tian’s wife had two 

12 abortions, which could not serve as a basis for Tian to get 

13 asylum. Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 

14 299–300 (2d Cir. 2007). Even if credited, the document would 

15 not cure the core inconsistency in Tian’s testimony about when, 

16 where, and for how long he allegedly suffered harm. 

17 For the foregoing reasons, the petition for review is 

18 DENIED. As we have completed our review, any stay of removal 

19 that the Court previously granted in this petition is VACATED, 

20 and any pending motion for a stay of removal in this petition 

21 is DISMISSED as moot. Any pending request for oral argument 

22 in this petition is DENIED in accordance with Federal Rule of 
7

1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

2 34.1(b). 

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk