Xiu v. Sessions ( 2018 )

16-3108
Xiu v. Sessions
BIA
Poczter, IJ
A206 364 234
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
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 9th day of February, two thousand eighteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 ZHANG MEI XIU,
14 Petitioner,
15
16 v. 16-3108
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Zhen Liang Li, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Edward E. Wiggers,
27 Senior Litigation Counsel; Michael
28 C. Heyse, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
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 is
4 DENIED.
5 Petitioner Zhang Mei Xiu, a native and citizen of the
6 People’s Republic of China, seeks review of an August 8, 2016,
7 decision of the BIA affirming an August 6, 2015, decision of
8 an Immigration Judge (“IJ”) denying Xiu’s application for
9 asylum, withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Zhang Mei Xiu, No. A 206 364 234
11 (B.I.A. Aug. 8, 2016), aff’g No. A 206 364 234 (Immig. Ct. N.Y.
12 City Aug. 6, 2015). We assume the parties’ familiarity with
13 the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and BIA’s decisions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
19 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
20 The agency may, “[c]onsidering the totality of the
21 circumstances,” base a credibility finding on asylum
2
1 applicant’s “demeanor, candor or responsiveness,” the inherent
2 plausibility of her account, and any inconsistencies and
3 omissions in her testimony, application, and documentary
4 evidence. 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia
5 Lin, 534 F.3d at 163-64, 167. “We defer . . . to an IJ’s
6 credibility determination unless . . . it is plain that no
7 reasonable fact-finder could make such an adverse credibility
8 ruling.” Xiu Xia Lin, 534 F.3d at 167. Substantial evidence
9 supports the agency’s determination that Xiu was not credible.
10 The agency reasonably relied on discrepancies between
11 Xiu’s application, testimony, and her father’s letter regarding
12 how long Xiu attended her underground church in China before
13 she was arrested, how many times the police visited her home
14 and summoned her to the station, whether police suspected her
15 involvement in distributing religious leaflets, and whether she
16 was kicked during her beatings in detention. 8 U.S.C.
17 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166-67
18 (explaining that adverse credibility determination may be
19 supported by either material or non-material inconsistencies,
20 so long as the totality of the circumstances supports the
21 determination). The record supports the agency’s conclusion
3
1 that the record included discrepancies and exaggeration.
2 Although Xiu attended church in China only three
3 times—October 1, 8, and 10, 2013—her application stated that
4 she “went to the family church almost every week and studied
5 the Bible very hard.” Similarly, Xiu’s application stated that
6 the police visited her home or summoned her to the station every
7 three to five days and she “could not lead a normal life under
8 their constant harassment,” but she testified that the police
9 summoned her to the station only once and visited her home only
10 once. A letter from Xiu’s father stated that the police
11 separately investigated Xiu for distributing religious
12 leaflets and that this further motivated Xiu to flee China, but
13 Xiu testified that she had “no idea” whether the police
14 investigated her for distribution of religious leaflets. And
15 Xiu stated that the police slapped, punched, and hit her, but
16 her father’s letter added that Xiu was kicked. The agency
17 reasonably relied on these discrepancies, including those in
18 the letter because that letter was Xiu’s only evidence to
19 corroborate events in China. See Xiu Xia Lin, 534 F.3d at20 166-67; Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
21 (recognizing that “[a]n applicant’s failure to corroborate his
4
1 . . . testimony may bear on credibility, because the absence
2 of corroboration in general makes an applicant unable to
3 rehabilitate testimony that has already been called into
4 question”).
5 Xiu argues that her application and testimony were
6 technically consistent as to her church attendance. While her
7 statement that she attended church every week is true to the
8 extent that she attended church twice in a two-week period, her
9 statement that she “went to the family church almost every week
10 and studied the Bible very hard” implies a much more substantial
11 involvement with Christianity. Accordingly, the IJ did not err
12 in finding this was an attempt to exaggerate her claim. See
13 8 U.S.C. § 1158(b)(1)(B)(iii) (noting that lack of candor may
14 ground adverse credibility determination); cf. Majidi v.
15 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“A petitioner must
16 do more than offer a plausible explanation for his inconsistent
17 statements to secure relief; he must demonstrate that a
18 reasonable fact-finder would be compelled to credit his
19 testimony.” (quotation marks omitted)).
20 In sum, Xiu’s lack of consistency and exaggeration
21 regarding her church attendance, the frequency and number of
5
1 police visits and summonses, whether the police were
2 investigating her for distributing religious leaflets, and her
3 beating in detention provide substantial evidence for the
4 adverse credibility determination. See 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166-67. That
6 determination is dispositive of asylum, withholding of removal,
7 and CAT relief because all three claims were based on the same
8 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57
9 (2d Cir. 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk of Court
6