Naiying Suo v. Lynch , 637 F. App'x 629 ( 2016 )

14-2283
Suo v. Lynch
BIA
Vomacka, IJ
A087 469 166
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 for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
5th day of January, two thousand sixteen.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
_____________________________________
NAIYING SUO,
Petitioner,
v. 14-2283
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Dehai Zhang, Flushing, New York.
FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
Attorney General; Claire L. Workman,
Senior Litigation Counsel; Briena L.
Strippoli, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Naiying Suo, a native and citizen of the
People’s Republic of China, seeks review of a June 12, 2014
decision of the BIA affirming an October 21, 2013 decision of
Immigration Judge (“IJ”) Alan A. Vomacka denying Suo’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). See In re
Naiying Suo, No. A087 469 166 (B.I.A. June 12, 2014), aff’g No.
A087 469 166 (Immig. Ct. N.Y.C. Oct. 21, 2013). Under the
circumstances of this case, we review the IJ’s decision as
modified and supplemented by the BIA decision, see Xian Tuan
Ye v. DHS, 446 F.3d 289, 293, 296 (2d Cir. 2006), applying well
established standards of review, see 8 U.S.C. § 1252(b)(4)(B);
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). In
doing so, we assume the parties’ familiarity with the underlying
facts and procedural history in this case.
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For asylum applications such as Suo’s, governed by the REAL
ID Act of 2005, the agency may, considering the totality of the
circumstances, base a credibility finding on the plausibility
of an asylum applicant’s account and inconsistencies in his
statements, so long as they reasonably support an inference that
he is not credible. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We defer “to
an IJ’s credibility determination unless, from the totality of
the circumstances, it is plain that no reasonable fact-finder
could make such an adverse credibility ruling.” Xiu Xia Lin
v. Mukasey, 534 F.3d at 167.
The agency reasonably relied on implausible aspects of
Suo’s claim, the discrepancies between his testimony and that
of his witnesses, and his lack of relevant corroborating
evidence in finding him not credible. We uphold an IJ’s
implausibility findings unless we have a “definite and firm
conviction that a mistake has been committed” and as long as
the finding is “tethered to record evidence.” Wensheng Yan v.
Mukasey, 509 F.3d 63, 67 (2d Cir. 2007); see Ming Xia Chen v.
BIA, 435 F.3d 141, 145 (2d Cir. 2006).
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Here, while Suo explained that after he was told not to
practice Zhong Gong at work, he only practiced in isolated
places when he thought no one was around, the IJ reasonably found
that explanation implausible because Suo did not explain why
he continued to practice while he was at work at all; he had
claimed he was practicing Zhong Gong only for his health and
so could have limited his practice to the safety of his home.
See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (agency
need not credit applicant’s explanation unless it would compel
reasonable fact-finder to do so).
The agency’s finding that Suo and his witnesses were
inconsistent as to Suo’s work history is also supported by
substantial evidence based on discrepancies as to whether and
when Suo worked in restaurants in New York, Minnesota, New
Hampshire, or Massachusetts. In 2010, Suo testified that in
2008 and 2009 he worked as a cook in New York and Minnesota.
In 2013, he testified that before working in Minnesota he worked
in New Hampshire and Massachusetts and he never worked in New
York. Similarly, Suo’s two witnesses testified that they
worked with him in New Hampshire and Massachusetts.
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Having questioned Suo’s credibility, the agency reasonably
relied further on his failure to provide relevant corroborating
evidence sufficient to rehabilitate his testimony: Suo did not
present any documentary evidence showing that he had been
arrested and detained in China, and neither he nor his witnesses
presented any documents to show that they had worked together
at restaurants in New Hampshire and Massachusetts. “An
applicant’s failure to corroborate his [] testimony may bear
on credibility, because the absence of corroboration in general
makes an applicant unable to rehabilitate testimony that has
already been called into question.” Biao Yang v. Gonzales, 496
F.3d 268, 273 (2d Cir. 2007).
Because substantial evidence supports the agency’s
findings that Suo’s claim was implausible and his testimony
inconsistent, we conclude that a totality of the circumstances
supports the agency’s adverse credibility determination. See
8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d
at 167. Further, because the only evidence of a threat to Suo’s
life or freedom depended upon his credibility, the agency’s
finding that he was not credible provided an adequate basis for
5
denying him asylum, withholding of removal, and CAT relief.
See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
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