Yuxian Wu v. Lynch ( 2016 )

14-3617
Wu v. Lynch
BIA
Poczter, IJ
A205 220 772
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
1st day of February, two thousand sixteen.
PRESENT:
JON O. NEWMAN,
DENNIS JACOBS,
PETER W. HALL,
Circuit Judges.
_____________________________________
YUXIAN WU,
Petitioner,
v. 14-3617
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Corey T. Lee, New York, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General;
Jennifer Williams, Senior
Litigation Counsel; Lindsay W.
Zimliki, 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 Yuxian Wu, a native and citizen of China, seeks
review of an August 29, 2014, decision of the BIA affirming a
June 25, 2013, decision of an Immigration Judge (“IJ”) denying
Wu’s application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Yuxian Wu,
No. A205 220 772 (B.I.A. Aug. 29, 2014), aff’g No. A205 220 772
(Immig. Ct. N.Y. City June 25, 2013). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have considered
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir.2006). The applicable standards of review are
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well established. See 8 U.S.C. § 1252(b)(4)(B); see also
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
For asylum applications such as Wu’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 and evidence, without regard
to whether they go “to the heart of the applicant’s claim,” so
long as they reasonably support an inference that the applicant
is not credible. 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia
Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). “We defer
therefore 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, 534 F.3d at 167.
Wu claimed that he had been persecuted in China because he
attended an underground Christian church; he also claimed that
he was a practicing Christian and attended church in the United
States. Substantial evidence supports the agency’s adverse
credibility determination, based on the inconsistencies
between Wu’s testimony and that of his witnesses. Wu testified
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that the Sunday prior to his hearing, he had attended a morning
service with his cousin. However, Wu’s cousin had been in China
for the past two months, and did not return until Sunday
afternoon. He was visiting China because his grandmother and
his cousin, who was Wu’s brother, had both recently passed away.
The IJ reasonably rejected Wu’s explanation for the
inconsistency – he thought the question was whether his cousin
went to Wu’s baptism – given the several questions Wu was asked
about his church attendance and the clarity of the trial
attorney’s final question on the issue. See Majidi v.
Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).
Wu testified that although he lived with his cousin, he did
not know that his cousin had traveled to China, much less why.
The IJ found it implausible that Wu would not know that his
cousin and housemate had been in China for the past two months,
in part because of the death of Wu’s brother. The IJ’s finding
was reasonable, given the inherent implausibility in Wu’s
statements. See Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d
Cir. 2007); Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir.
2007).
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Wu’s claim to be a practicing Christian was further
undermined by his second witness, who testified that he and Wu
met at a supermarket in Flushing in November 2011. Wu testified
that they met at a bible study group a month earlier.
Because Wu and his witnesses testified inconsistently, and
Wu’s testimony was, in part, implausible, substantial evidence
supports the agency’s findings. Moreover, although the
inconsistencies do not go to Wu’s claim of past persecution,
the inconsistencies and implausibility reasonably support an
inference that he is not credible. “[A]n IJ may rely on any
inconsistency or omission in making an adverse credibility
determination” including those that “concern matters
collateral or ancillary to the claim” as long as a totality of
the circumstances establishes that the applicant is not
credible. Xiu Xia Lin, 534 F.3d at 167; see Siewe, 480 F.3d
at 170 (“a single instance of false testimony may . . . infect
the balance of the alien’s uncorroborated or unauthenticated
evidence”). Here, the inconsistencies and implausibility,
considered cumulatively, provide substantial evidence for the
agency’s adverse credibility finding, based on a totality of
the circumstances, as they call into question Wu’s practice of
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Christianity as well as his general truthfulness. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
Because the only evidence of a threat to Wu’s life or
freedom depended on his credibility, the agency’s finding that
he was not credible necessarily precludes success on his claims
for asylum, withholding of removal, and CAT relief. Paul v.
Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DENIED as moot.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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