17-884 

Shi v. Sessions

BIA

 Poczter, IJ 

A205 218 971

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 the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 20th 3 day of August, two thousand eighteen.

4

5 PRESENT:

6 JOSÉ A. CABRANES,

7 GERARD E. LYNCH,

8 RAYMOND J. LOHIER, JR.,

9 Circuit Judges.

10 _____________________________________

11

12 YOUSHENG SHI,

13 Petitioner,

14

15 v. 17-884

16 NAC

17 JEFFERSON B. SESSIONS III, UNITED 

18 STATES ATTORNEY GENERAL,

19 Respondent.

20 _____________________________________

21

22 FOR PETITIONER: David X. Feng, New York, NY.

23

24 FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney 

25 General; Paul Fiorino, Senior Litigation 

26 Counsel; Judith R. O’Sullivan, Trial Attorney,

27 Office of Immigration Litigation, United States 

28 Department of Justice, Washington, DC.

29
2

1 UPON DUE CONSIDERATION of this petition for review of a Board of

2 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

3 DECREED that the petition for review is DENIED.

4 Petitioner Yousheng Shi, a native and citizen of the People’s Republic of China,

5 seeks review of a March 2, 2017, decision of the BIA affirming a September 14, 2016,

6 decision of an Immigration Judge (“IJ”) denying Shi’s application for asylum,

7 withholding of removal, and relief under the Convention Against Torture (“CAT”). In

8 re Yousheng Shi, No. A205 218 971 (B.I.A. Mar. 2, 2017), aff’g No. A205 218 971

9 (Immig. Ct. N.Y. City Sept. 14, 2016). We assume the parties’ familiarity with the

10 underlying facts and procedural history in this case.

11 Under the circumstances of this case, we have reviewed only the agency’s adverse

12 credibility determination. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general

13 rule courts and agencies are not required to make findings on issues the decision of which

14 is unnecessary to the results they reach.”). The applicable standards of review are well

15 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

16 66 (2d Cir. 2008). 

17 The governing REAL ID Act credibility standard provides that the agency must

18 “[c]onsider[] the totality of the circumstances,” and may base a credibility finding on an

19 applicant’s “demeanor, candor, or responsiveness,” the plausibility of his account, and

20 inconsistencies in his statements, “without regard to whether” they go “to the heart of the

21 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-

22 64, 166-67. “[E]ven where an IJ relies on discrepancies or lacunae that, if taken
3

1 separately, concern matters collateral or ancillary to the claim, the cumulative effect may

2 nevertheless be deemed consequential by the fact-finder.” Tu Lin v. Gonzales, 446 F.3d

3 395, 402 (2d Cir. 2006) (internal quotation marks and citation omitted). “We defer . . . to

4 an IJ’s credibility determination unless . . . it is plain that no reasonable fact-finder could

5 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.

6 We conclude that the “totality of the circumstances” supports the adverse

7 credibility determination. Id. at 166-67. While the bases for the credibility

8 determination relate to Shi’s prior trips and employment in the United States, which do

9 not directly concern the alleged persecution in China, the inconsistencies undermine the

10 chronology of his claim of persecution, he offered only limited testimony on the

11 substance of his claim, and he struggled to offer a coherent description of his prior trips

12 and employment in the United States. Therefore, even though the credibility

13 determination is based on “matters collateral or ancillary to the claim,” the agency

14 reasonably found the “cumulative effect” of these problems “consequential” under the

15 totality of the circumstances. Tu Lin, 446 F.3d at 402.

16 Moreover, the adverse credibility determination was reasonably based on the IJ’s

17 observations of Shi’s demeanor. 8 U.S.C. § 1158(b)(1)(B)(iii). “[D]emeanor is

18 paradigmatically the sort of evidence that a fact-finder is best positioned to evaluate,” Li

19 Zu Guan v. INS, 453 F.3d 129, 140 (2d Cir. 2006), and “[w]e give particular deference to

20 credibility determinations that are based on the adjudicator’s observation of the

21 applicant’s demeanor,” Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.

22 2005). Shi does not specifically challenge the demeanor finding, and the IJ’s
4

1 observation that Shi was often nonresponsive to questions is supported by the record. 

2 For example, when asked how many sites he worked at in Guam, Shi responded by

3 describing the type of work he performed. 

4 “We can be still more confident in our review of observations about an applicant’s

5 demeanor where . . . they are supported by specific examples of inconsistent testimony.”

6 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006). Here, as the IJ

7 observed, Shi’s statements and testimony concerning his previous visits to the United

8 States were inconsistent and often incomprehensible. In relevant part, Shi’s application

9 form listed a prior trip to the United States in 2010 and his original written statement

10 reported that he traveled abroad sometime after July 2010. Shi’s amended statement did

11 not reference any travel abroad, and he testified that he did not know whether the trip was

12 in 2009 or 2010 and gave differing answers concerning the length of his stay. 

13 Accordingly, as the IJ found, Shi’s lack of a coherent timeline undermined his statements

14 that he suffered persecution in 2010 and traveled abroad thereafter. See 8 U.S.C.

15 § 1158(b)(1)(B)(iii). The IJ also reasonably relied on Shi’s omission of his 2009 or

16 2010 trip from his amended statement given his testimony linking the trip to the United

17 States to repayment of medical expenses discussed in that statement. Id.; Xiu Xia Lin,

18 534 F.3d at 166-67 (upholding agency’s reliance on omissions from an application and

19 corroborating documents). Although additional inconsistencies regarding Shi’s

20 employment during his previous trips do not concern the substance of the claim, the IJ

21 reasonably found their cumulative effect significant. Tu Lin, 446 F.3d at 402. 

22 Finally, the agency reasonably found Shi’s corroborating evidence insufficient to
5

1 rehabilitate his credibility. Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)

2 (“An applicant’s failure to corroborate his . . . testimony may bear on credibility, because

3 the absence of corroboration in general makes an applicant unable to rehabilitate

4 testimony that has already been called into question”). The agency did not err in

5 declining to credit Shi’s letters from his wife and his friend because they were authored

6 by interested witnesses unavailable for cross examination. Y.C. v. Holder, 741 F.3d

7 324, 334 (2d Cir. 2013) (deferring to agency’s decision to give little weight to letter from

8 applicant’s spouse); Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)

9 (observing that the agency can give little weight to document drafted by a witness not

10 subject to cross examination), rev’d on other grounds by Hui Lin Huang v. Holder, 677

11 F.3d 130 (2d Cir. 2012). The agency also reasonably declined to credit Shi’s only other

12 corroborating evidence—a note from his wife’s doctor confirming an abortion—because

13 it was unauthenticated, lacked details, and introduced inconsistency regarding his wife’s

14 occupation. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)

15 (observing that the weight accorded to an applicant’s “evidence lie[s] largely within the

16 discretion of the IJ.” (internal quotation marks omitted)). Shi does not specifically

17 challenge the weight accorded this evidence, nor does he challenge the IJ’s finding that

18 he failed to rehabilitate his claim with reasonably available evidence of his previous

19 employment; payments of bribes, fines, or medical bills; or his injuries or medical

20 expenses resulting from his alleged beating. See Chuilu Liu v. Holder, 575 F.3d 193,

21 198 (2d Cir. 2009) (“[T]he alien bears the ultimate burden of introducing [corroborating]

22 evidence without prompting from the IJ.”); cf. 8 U.S.C. § 1252(b)(4) (“No court shall
6

1 reverse a determination made by a trier of fact with respect to the availability of

2 corroborating evidence . . . unless . . . a reasonable trier of fact is compelled to conclude

3 that such corroborating evidence is unavailable.”).

4 Given the foregoing demeanor, inconsistency, and corroboration findings, we

5 conclude that the “totality of the circumstances” supports the adverse credibility

6 determination. See Xiu Xia Lin, 534 F.3d at 166-67 (“Where the IJ’s adverse credibility

7 finding is based on specific examples . . . of inconsistent statements or contradictory

8 evidence, a reviewing court will generally not be able to conclude that a reasonable

9 adjudicator was compelled to find otherwise.” (internal quotation marks omitted)). The

10 adverse credibility determination is dispositive because the claims for asylum,

11 withholding of removal, and CAT relief are all based on the same discredited factual

12 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 

13 For the foregoing reasons, the petition for review is DENIED. 

14 FOR THE COURT:

15 Catherine O’Hagan Wolfe, Clerk of Court