17-1828 Tan v. Barr BIA Bukszpan, IJ A205 886 707 

### 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** 1 **for the Second Circuit, held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 29 th**  **day of May, two thousand nineteen.** 4 5 **PRESENT:** 6 **ROBERT D. SACK,** 7 **CHRISTOPHER F. DRONEY,** 8 **RICHARD J. SULLIVAN,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **HAI TAN,** 13 Petitioner **,** 14 15 **v. 17-1828** 16 **NAC** 17 **WILLIAM P. BARR, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Jim Li, Flushing, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Kiley Kane, 26 Senior Litigation Counsel; Ann M. 27 Welhaf, Trial Attorney, Office of 28 Immigration Litigation, United 29 States Department of Justice, 30 Washington, DC. 312 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 3 is DENIED. 4 Petitioner Hai Tan, a native and citizen of the People’s 5 Republic of China, seeks review of a May 15, 2017, decision 6 of the BIA affirming a September 19, 2016, decision of an 7 Immigration Judge (“IJ”) denying asylum, withholding of 8 removal, and relief under the Convention Against Torture 9 (“CAT”). In re Hai Tan, No. A205 886 707 (B.I.A. May 15, 10 2017), aff’g No. A205 886 707 (Immig. Ct. N.Y. City Sept. 19, 11 2016). 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 14 BIA, which did not consider t he IJ’s findings regarding Tan’s 15 U.S. visa. See Xue Hong Yang v. U.S. Dep’t of Justice , 426 16 F.3d 520, 522 (2d Cir. 2005). The applicable standards of 17 review are well established. See 8 U.S.C. § 1252(b)(4)(B); 18 Hong Fei Gao v. Sessions , 891 F.3d 67, 76 (2d Cir. 2018). 19 “Considering the totality of the circumstances, and all 20 relevant factors, a trier of fact may base a credibility 21 determination on . . . the inherent plausibility of the 223 applicant’s or witness’s account, the consistency between the 1 applicant’s or witness’s written and oral statements . . . , 2 the internal consistency of each such statement, [and] the 3 consistency of such statements with other evidence of record 4 . . . without regard to whether an inconsistency, inaccuracy, 5 or falsehood goes to the heart of the applicant’s claim, or 6 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); 7 Xiu Xia Lin v. Mukasey , 534 F.3d 162, 163-64 (2d Cir. 2008). 8 Substantial evidence supports the agency’s determination that 9 Tan was not credible as to his claim that he has three 10 children (two daughters and a son) in violation of China’s 11 family planning policy and that he was persecuted and fears 12 harm on that account. 13 The agency reasonably relied in part on Tan’s submission 14 to the immigration court of a fraudulent household register 15 designed to support his claim that he has three children. 16 See Siewe v. Gonzales , 480 F.3d 160, 170 (2d Cir. 2007) 17 (providing that an applicant’s presentation of “a single 18 false document or a single instance of false testimony may 19 (if attributable to the petitioner)” influence an IJ’s 20 credibility determination); Borovikova v. U.S. Dep’t of 21 Justice , 435 F.3d 151, 157-58 (2d Cir. 2006) (concluding that 224 submission of a fraudulent document to support asylum 1 application may alone constitute substantial evidence 2 warranting an adverse credibility finding); see also In re O3

D- , 21 I. & N. Dec. 1079, 1083 (BIA 1998) (holding that an 4 asylum applicant’s “presentation of at least one counterfeit 5 document, and probably two, submitted to prove a central 6 element of the claim in an asylum adjudication” may be relied 7 on to discredit other evidence and to find the applicant not 8 credible). 9 The agency also reasonably found the record inconsistent 10 regarding the purpose of the fraudulent document. See 11 8 U.S.C. § 1158(b)(1)(B)(iii). Tan testified variously that 12 his daughters never had another household register, that they 13 may have had an earlier register, that they had a register at 14 birth, and finally that they obtained the fraudulent register 15 when they were 6 years old so they could attend a specific 16 school. Tan’s testimony was inconsistent with the register, 17 which provided that the daughters were registered for the 18 first time when they were 11 and 8 years old. 19 At the conclusion of Tan’s merits hearing, the IJ 20 continued proceedings to give Tan an opportunity to further 21 corroborate his claim that he has three children. The IJ 225 specifically requested Tan’s daughters’ school records, their 1 birth records, a family register, and Tan’s visa application 2 for South Korea (to see if Tan listed his daughters in that 3 application). The IJ did not err in finding that Tan failed 4 to rehabilitate his claim with reliable evidence 5 corroborating that he has two daughters because, despite the 6 continuance, Tan failed to supply his daughters’ school 7 records or his visa application as requested. See Biao Yang 8 v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s 9 failure to corroborate his or her testimony may bear on 10 credibility, because the absence of corroboration in general 11 makes an applicant unable to rehabilitate testimony that has 12 already been called into question.”). 13 Further, the IJ reasonably decli ned to credit the 14 evidence that Tan submitted, whic h included (1) hospital 15 birth certificates issued in 2012 but not submitted before 16 his 2016 hearing, (2) a 2015 household register that listed 17 Tan as head of household and included his wife, son, and 18 daughters despite his 2016 testimony that his daughters were 19 registered separately, and (3) a handwritten letter stating 20 that Tan is the father of his three children that was stamped 21 at a police station when he testified that his wife had bribed 226 a relative who worked for the police to create fake documents. 1 See Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 342 2 (2d Cir. 2006) (holding that weight afforded to applicant’s 3 evidence is largely within agency discretion); see also 4 Siewe , 480 F.3d at 170 (“[W]here an IJ’s finding of 5 fabrication (supported by substantial evidence) serves as the 6 basis for discrediting other evidence, a reviewing court is 7 in no position to conclude that the discrediting of the 8 remaining evidence is unsupported by substantial evidence.”). 9 The IJ also reasonably questioned the existence of Tan’s 10 daughters given that Tan did not submit any evidence of his 11 daughters’ existence created before 2010 although they were 12 born in 1999 and 2004. See Biao Yang , 496 F.3d at 273. 13 Given the fraud, inconsistency, and lack of corroboration 14 findings, the agency’s adverse credibility determination is 15 supported by substantial evidence. See 8 U.S.C. 16 § 1158(b)(1)(B)(iii); see also Siewe , 480 F.3d at 170; Biao 17 Yang , 496 F.3d at 273. The credibility determination is 18 dispositive of asylum, withholding of removal, and CAT relief 19 because all three claims are based on the same factual 20 predicate. See Paul v. Gonzales , 444 F.3d 148, 156-57 (2d 21 Cir. 2006). 227 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our rev iew, any stay of removal 2 that the Court previously granted in this petition is VACATED, 3 and any pending motion for a stay of removal in this petition 4 is DISMISSED as moot. Any pending request for oral argument 5 in this petition is DENIED in accordance with Federal Rule of 6 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 7 34.1(b). 8
FOR THE COURT: 9 Catherine O’Hagan Wolfe 10 Clerk of Court 11