18-424 

Sun v. Barr 

BIA 

Vomacka, IJ 

A205 631 399

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

AMENDED 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 

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 23rd 4 day of January, two thousand twenty. 

5 

6 PRESENT: 

7 JON O. NEWMAN,

8 JOHN M. WALKER, JR., 

Circuit Judges.1 9 

10 _____________________________________ 

11 

12 XIU LAN SUN, 

13 Petitioner, 

14 

15 v. 18-424 

16 NAC 

17 WILLIAM P. BARR, UNITED STATES 

18 ATTORNEY GENERAL, 

19 Respondent. 

20 _____________________________________ 

21 

22 FOR PETITIONER: Mike P. Gao, Flushing, NY. 

23 

24 FOR RESPONDENT: Chad A. Readler Acting Assistant 

25 Attorney General; Russell J.E. 

26 Verby, Senior Litigation Counsel; 

1 Judge Christopher F. Droney, who was originally assigned to the panel, retired 

from the Court, effective January 1, 2020, prior to the resolution of this case. 

The remaining two members of the panel, who are in agreement, have determined 

the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 

140 F.3d 457, 458–59 (2d Cir. 1998). 
2

1 John D. Williams, Trial Attorney, 

2 Office of Immigration Litigation, 

3 United States Department of 

4 Justice, Washington, DC. 

5 

6 UPON DUE CONSIDERATION of this petition for review of a 

7 Board of Immigration Appeals (“BIA”) decision, it is hereby 

8 ORDERED, ADJUDGED, AND DECREED that the petition for review 

9 is DENIED. 

10 Petitioner Xiu Lan Sun, a native and citizen of the 

11 People’s Republic of China, seeks review of a February 6, 

12 2018, decision of the BIA affirming a May 17, 2017, decision 

13 of an Immigration Judge (“IJ”) denying Sun’s application for 

14 asylum, withholding of removal, and relief under the 

15 Convention Against Torture (“CAT”). In re Xiu Lan Sun, No. 

16 A 205 631 399 (B.I.A. Feb. 6, 2018), aff’g No. A 205 631 399

17 (Immig. Ct. N.Y. City May 17, 2017). We assume the parties’ 

18 familiarity with the underlying facts and procedural history 

19 in this case. 

20 We have reviewed both the BIA’s and IJ’s decisions. See

21 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). 

22 The applicable standards of review are well established. See

23 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 

24 67, 76–77 (2d Cir. 2018). In making a credibility 

25 determination, the agency must “[c]onsider[] the totality of 
3

1 the circumstances” and may base a finding on the applicant’s 

2 “demeanor, candor, or responsiveness . . . , the inherent 

3 plausibility of the applicant’s . . . account,” 

4 inconsistencies in the applicant’s statements or between her 

5 statements and other evidence, “without regard to whether an 

6 inconsistency, inaccuracy, or falsehood goes to the heart of 

7 the applicant’s claim, or any other relevant factor.” 

8 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 

9 credibility determination unless, from the totality of the 

10 circumstances, it is plain that no reasonable fact-finder 

11 could make such an adverse credibility ruling.” Xiu Xia Lin 

12 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei 

13 Gao, 891 F.3d at 76. As discussed below, substantial 

14 evidence supports the adverse credibility determination. 

15 The IJ reasonably concluded that Sun’s written statements 

16 and testimony offered varying accounts of her alleged 

17 persecution—that she was required to have an intrauterine 

18 device (“IUD”) in 1986, have pregnancy checks thereafter, and 

19 was forced to have an abortion in 2004. See 8 U.S.C. 

20 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163–64, 166–

21 67. In her written statements, Sun represented that she was 

22 required to have an IUD after she had her first child and 

23 when family planning officials discovered she was pregnant 
4

1 with a second child, they “demanded” that she have an abortion 

2 and took her to an operating room where she underwent the 

3 procedure. But Sun testified that family planning officers 

4 restrained her while a nurse implanted her IUD, and a family 

5 planning officer held her down during her abortion. The IJ 

6 was not compelled to accept Sun’s explanation that an attorney 

7 prepared the statement as it failed to account for the 

8 omission of the allegations of physical force, particularly 

9 as the IJ had explicitly requested a more detailed written 

10 statement. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 

11 2005)(“A petitioner must do more than offer a plausible 

12 explanation for h[er] inconsistent statements to secure 

13 relief; [s]he must demonstrate that a reasonable fact-finder 

14 would be compelled to credit h[er] testimony.” (internal 

15 quotation marks omitted)). 

16 Similarly, Sun’s written statements failed to mention 

17 her employment at a state-owned factory, much less any adverse 

18 workplace repercussions stemming from her abortion. In 

19 contrast, Sun testified that after her abortion, her salary 

20 was reduced, and she was targeted for disciplinary 

21 infractions. The IJ was not required to accept Sun’s 

22 explanation that she did not know to include these facts and 

23 was entitled to rely on these omissions as they were direct 
5

1 consequences of her violation of the family planning policy 

2 that a credible petitioner would be expected to disclose under 

3 the circumstances. See id; Hong Fei Gao, 891 F.3d at 78–79. 

4 The IJ also reasonably concluded that aspects of Sun’s 

5 testimony were implausible and more consistent with a 

6 voluntary abortion, given that she testified to lesser 

7 restrictions—birth control pills that she voluntarily ceased 

8 using without consequence rather than an IUD—after the 

9 abortion. See 8 U.S.C. § 1158(b)(1)(B)(iii); see Siewe v. 

10 Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007) (“[S]peculation 

11 that inheres in inference is not ‘bald’ if the inference is 

12 made available to the factfinder by record facts . . . in the 

13 light of common sense and ordinary experience.”). Nor did 

14 the IJ err in relying on Sun’s three voluntary returns to 

15 China prior to seeking asylum in the United States, as 

16 undermining Sun’s fear of future harm. See Kone v. Holder, 

17 596 F.3d 141, 150–51 (2d Cir. 2010) (holding that while 

18 “return trips alone are insufficient to establish lack of 

19 credibility,” an IJ may consider them in connection with other 

20 findings). 

21 The IJ also reasonably relied on Sun’s lack of reliable 

22 corroboration. “An applicant’s failure to corroborate his 

23 or her testimony may bear on credibility, because the absence 
6

1 of corroboration in general makes an applicant unable to 

2 rehabilitate testimony that has already been called into 

3 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 

4 2007). As the IJ found, Sun had no employment or medical 

5 records to substantiate her claim. See Chuilu Liu v. Holder, 

6 575 F.3d 193, 198 (2d Cir. 2009) (“[T]he alien bears the 

7 ultimate burden of introducing [corroborating] evidence.”). 

8 The IJ did not err in declining to credit the letter from 

9 Sun’s mother as it did not mention the IUD or workplace issues 

10 or give any detail about the abortion, and it was from an 

11 interested witness not subject to cross-examination. See 

12 Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring 

13 to agency’s decision to afford little weight to spouse’s 

14 letter from China because it was unsworn and from an 

15 interested witness); Matter of H-L-H- & Z-Y-Z-, 25 I. & N. 

16 Dec. 209, 215 (B.I.A. 2010) (finding that letters from alien’s 

17 friends and family were insufficient support for claims 

18 because they were from interested witnesses not subject to 

19 cross-examination), overruled on other grounds by Hui Lin 

20 Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012). 

21 Given the variance among Sun’s written statements and 

22 testimony, the implausible aspects of her claim, her multiple 

23 returns to China, and the lack of corroboration, the “totality 
7

1 of the circumstances” supports the adverse credibility 

2 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 

3 Lin, 534 F.3d at 167. That determination is dispositive of 

4 asylum, withholding of removal, and CAT relief because all 

5 three claims are based on the same factual predicate. See 

6 Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006). 

7 For the foregoing reasons, the petition for review is 

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

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

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

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

12 in this petition is DENIED in accordance with Federal Rule of 

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

14 34.1(b). 

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe, 

17 Clerk of Court