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 M UST 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 the Second Circuit, 1

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

City of New York, on the 20 th da y of August , two thousand eighteen

. 3

4

PRESENT: 5 JOSÉ A. CABRANES, 6

GERARD E. LYNCH, 7

RAYMOND J. LOHIER, JR., 8

Circuit Judges. 9

_____________________________________ 10

11

YOUSHENG SHI

, 12

Petitioner

, 13

14

v. 17

- 884 15

NAC 16

JEFFERSON B. SESSIONS III , UNITED 17

STATES ATTORNEY GENERAL

, 18

Respondent

. 19

_____________________________________ 20

21

FOR PETITIONER : David X. Feng

, New York, NY

. 22

23

FOR RESPONDENT: Chad A. Readler

, Acting A ssistant Attorney 24

General; Paul Fiorino

, Senior Litigation 25

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

Office of Immigration Litigation, United States 27

Depar tment of Justice, Washington, D C. 28

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

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

DECREED that the petition for review is DENIED

. 3

Petitioner Yousheng Shi

, a native and citizen of the People’s Republi c of China

, 4

seeks review of a March 2, 2017

, de cision of the BIA affirming a September 14, 2016

, 5

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

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

re Yousheng Shi

, No. A205 218 971 (B.I.A. Mar

. 2

, 201 7 ), aff’g No. A205 218 971 8

(Immig. Ct. N.Y. City Sept

. 14

, 2016 ). We assume the parties’ familiarity with the 9

underlying facts and procedural history in this case. 10

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

credibility determination

. See INS v. Bagamasbad

, 429 U.S. 24, 25 (1976) (“As a general 12

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

is unnecessary to the results they reach.”)

. The applicable standards of review are well 14

established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey

, 534 F.3d 162, 165

- 15

66 (2d Cir. 2008)

. 16

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

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

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

inconsistencies in his statements

, “without regard to whether” they go “to the heart of the 20

applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin

, 534 F.3d at 163

- 21

64

, 166

- 67

. “[E]ven where an IJ relies on discrepancies or lacunae that, if taken 223 separately, concern matters collateral or ancillary to the claim, the cumulative effect may 1

nevertheless be deemed consequential by the fact

- finder.” Tu Lin v. Gonzales

, 446 F.3d 2

395, 4 02 (2d Cir. 2006) (internal quotation marks and citation omitted). “We defer

. . . to 3

an IJ’s c redibility determination unless

. . . it is plain that no reasonable fact

- finder could 4

make such an adverse credibility ruling.” Xiu Xia Lin

, 534 F.3d at 167. 5

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

credibility determination. Id

. at 166

- 67. While the bases for the credibility 7

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

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

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

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

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

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

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

totalit y of the circumstances. Tu Lin

, 446 F.3d at 402. 15

Moreover

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

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

paradigmatically the sort of evidence that a fact

- finder is best positioned to evaluate,” Li 18

Zu Guan v. INS

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

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

applicant’s demeanor,” Jin Chen v. U .S. Dep’t of Justice

, 426 F.3d 104, 113 (2d Cir. 21

2005). Shi does not specifically challenge the demeanor finding

, and t he IJ’s 224 observation that Shi was often nonresponsive to questions is supported by the record. 1

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

describing the type of work he performed. 3

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

demeanor where

. . . they are supported by specific examples of inconsistent testimony

. ” 5

Li Hua Lin v. U.S. Dep’t of Justice

, 453 F.3d 99, 109 (2d Cir. 2006)

. Here

, as the IJ 6

observed

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

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

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

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

not reference any travel abroad

, and he testified that he did not k now whether the trip was 11

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

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

that he suffered persecution in 2010 and traveled abroad there after

. See 8 U.S.C. 14

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

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

S tates to repayment of medical expenses discussed in that sta tement

. Id. ; Xiu Xia Lin

, 17

534 F.3d at 166

- 67 (upholding agency’s reliance on omissions from an application and 18

corroborating documents)

. Although additional inconsistencies regarding Shi’s 19

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

reasonably found thei r cumulative effect significant. Tu Lin

, 446 F.3d at 402. 21

Finally

, the agency reasonably found Shi’s corroborating evidence insufficient to 225 rehabilitate his credibility. Biao Yang v

. Gonzales

, 496 F.3d 268, 273 (2d Cir. 2007) 1

(“An applicant’s failure to corroborate his

. . . testimony may bear on credibility, because 2

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

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

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

by interested witnesses unavailable for cross examination. Y.C. v. Holder

, 741 F.3d 6

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

applicant’s spouse); Matter of H

- L

- H

- & Z

- Y

- Z

- , 25 I. & N. Dec. 209, 215 (B.I.A. 2010) 8

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

subject to cross exami nation), rev’d on other grounds by Hui Lin Huang v. Holder

, 677 10

F.3d 130 (2d Cir. 2012)

. The agency also reasonably declined to credit Shi’s only other 11

corroborating evidence

— a note from his wife’s doctor confirming an abortion

— because 12

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

occupation

. Xiao Ji Chen v. U.S. Dep’t of Justice

, 471 F.3d 315, 342 (2d Cir. 2006) 14

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

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

challenge the weight accorded t his evidence, n or does he challenge the IJ’s finding that 17

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

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

expenses resulting from his alleged beati ng. See Chuilu Liu v. Holder

, 575 F.3d 193, 20

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

evidence without prompting from the IJ.”); cf. 8 U.S.C. § 1252(b)(4) (“No court shall 226 reverse a determination made by a t rier of fact with respect to the availability of 1

corroborating evidence

. . . unless

. . . a reasonable trier of fact is compelled to conclude 2

that such corroborating evidence is unavailable.”). 3

Given the foregoing demeanor, inconsistency, and corroborati on findings

, we 4

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

determination. See Xiu Xia Lin

, 534 F.3d at 16 6

- 67 (“Where the IJ’s adverse credibility 6

finding is based on specific examples

. . . of inconsistent statements or contradictory 7

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

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

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

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

predicate. See Paul v. Gonzales

, 444 F.3d 148, 1 56

- 57 (2d Cir. 2006). 12

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

FOR THE COURT: 14

Catherine O’ Hagan Wolfe, Clerk of Court 15