Guigen Li v. Holder , 593 F. App'x 81 ( 2014 )

13-817
Li v. Holder
BIA
Morace, IJ
A087 768 832
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 19th day of December, two thousand fourteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 GUIDO CALABRESI,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 GUIGEN LI,
14 Petitioner,
15
16 v. 13-817
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lee Ratner, Esq., Law Offices of
24 Michael Brown, New York, New York.
25
26 FOR RESPONDENT: Matthew Allan Spurlock, Esq., Office
27 of Immigration Litigation, United
28 States Department of Justice,
29 Washington, D.C.
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
4 is DENIED.
5 Petitioner Guigen Li, a native and citizen of the
6 People’s Republic of China, seeks review of a February 22,
7 2013, decision of the BIA affirming the July 19, 2011,
8 decision of an Immigration Judge (“IJ”), which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Guigen
11 Li, No. A087 768 832 (B.I.A. Feb. 22, 2013), aff’g No. A087
12 768 832 (Immig. Ct. N.Y. City July 19, 2011). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision, including the portions not explicitly
17 discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d
18 391, 394 (2d Cir. 2005). The applicable standards of review
19 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
20 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 For asylum applications such as Li’s, which are
22 governed by the REAL ID Act, the agency may, considering the
23 totality of the circumstances, base a credibility finding on
2
1 an asylum applicant’s “demeanor, candor, or responsiveness,”
2 the plausibility of his or her account, and inconsistencies
3 in his or her statements, without regard to whether they go
4 “to the heart of the applicant’s claim.” See 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
6 167 (2d Cir. 2008).
7 The agency’s adverse credibility finding is supported
8 by substantial evidence. As the IJ correctly noted, Li’s
9 asylum application and his testimony differed significantly
10 from his credible fear interview. Li stated in his credible
11 fear interview that he left China because his home was
12 seized for development; while he identified himself as a
13 Christian, he explicitly stated that no one in China wanted
14 to harm him on account of his religion. C.A.R. at 124, 128.
15 In his asylum application and testimony, however, Li claimed
16 that he left China because he was arrested for practicing
17 Christianity. Id. at 244-60.
18 The IJ considered but rejected Li’s explanation for
19 this inconsistency that the smuggler who brought him into
20 the country urged him not to mention his religion, for fear
21 of reprisal by the Chinese government if he were deported.
22 This explanation, even if considered plausible, did not have
3
1 to be credited by the agency. See 8 U.S.C.
2 § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 80-81
3 (2d Cir. 2005). While Li contends that his evidence
4 contained a mere omission, rather than an inconsistency,
5 Pet. Br. at 10, the two are “functionally equivalent.” Xiu
6 Xia Lin, 534 F.3d at 167. Moreover, as discussed, Li did
7 not simply omit his claims of religious persecution; he
8 explicitly denied that anyone in China sought to persecute
9 him for his religion. C.A.R. at 128.
10 As the BIA recognized, credible fear interviews
11 “warrant the close examination called for by” Ramsameachire
12 v. Ashcroft, 357 F.3d 169 (2d Cir. 2004). Ming Zhang v.
13 Holder, 585 F.3d 715, 724 (2d Cir. 2009); C.A.R. at 3. Here,
14 the credible fear interview “bears sufficient indicia of
15 reliability to warrant its consideration by the agency.”
16 Ming Zhang, 585 F.3d at 724. There is no claim that Li was
17 coerced or had difficulty understanding the interpreter, and
18 question and answers at issue leave little room for
19 ambiguity.
20 Li’s argument that the IJ ignored evidence favorable to
21 his claim is also meritless. The IJ explicitly considered
22 Li’s documentary evidence, which was reasonably found to be
4
1 very limited and unpersuasive. See C.A.R. at 65.
2 Accordingly, the IJ’s adverse credibility determination in
3 this case is supported by substantial evidence. Xiu Xia
4 Lin, 534 F.3d at 167.
5 Because the only evidence of a threat to Li’s life or
6 freedom depended upon his credibility, the adverse
7 credibility determination in this case necessarily precludes
8 success on his claims for asylum, withholding of removal,
9 and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156-57
10 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, the pending motion
13 for a stay of removal in this petition is DENIED as moot.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
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