Qiao v. Lynch ( 2016 )

15-319
Qiao v. Lynch
BIA
Schoppert, IJ
A200 930 239
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 23rd day of June, two thousand sixteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 QIANFENG QIAO,
14 Petitioner,
15
16 v. 15-319
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Zhen Liang Li, Law Office of Zhen
24 Liang Li, New York, New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal
27 Deputy Assistant Attorney
28 General; Jamie M. Dowd, Senior
29 Litigation Counsel; Andrew N.
30 O’Malley, Trial Attorney, Office
31 of Immigration Litigation, United
32 States Department of Justice,
33 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 is
4 DENIED.
5 Petitioner Qianfeng Qiao, a native and citizen of China,
6 seeks review of a January 6, 2015, decision of the BIA, affirming
7 an April 2, 2013, decision of an Immigration Judge (“IJ”)
8 denying Qiao’s application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”). In
10 re Qianfeng Qiao, No. A200 930 239 (B.I.A. Jan. 6, 2015), aff’g
11 No. A200 930 239 (Immig. Ct. N.Y. City Apr. 2, 2013). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the BIA’s and IJ’s decisions. See Yun-Zui Guan v. Gonzales,
16 432 F.3d 391, 394 (2d Cir. 2005) (“Where, as here, the BIA agrees
17 with the IJ’s conclusion that a petitioner is not credible and,
18 without rejecting any of the IJ’s grounds for decision,
19 emphasizes particular aspects of that decision, we will review
20 both the BIA’s and IJ’s opinions . . . including the portions
21 not explicitly discussed by the BIA.”). The standards of
22 review are well established. 8 U.S.C. § 1252(b)(4); Xiu Xia
23 Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008).
2
1 The agency may, “[c]onsidering the totality of the
2 circumstances,” base a credibility finding on an asylum
3 applicant’s “demeanor, candor, or responsiveness,” the
4 plausibility of his account, and inconsistencies in his
5 statements and other record evidence “without regard to
6 whether” those inconsistencies go “to the heart of the
7 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
8 Lin, 534 F.3d at 163-64. “We defer therefore to an IJ’s
9 credibility determination unless . . . it is plain that no
10 reasonable fact-finder could make such an adverse credibility
11 ruling.” Xiu Xia Lin, 534 F.3d at 167. Substantial evidence
12 supports the agency’s determination that Qiao was not credible.
13 The agency reasonably relied on inconsistencies among
14 Qiao’s testimony, his written statement, and letters from his
15 father and uncle regarding whether he went to the hospital for
16 treatment of his injuries and who accompanied him. See Xiu Xia
17 Lin, 534 F.3d at 166-67. Qiao’s written statement makes no
18 mention of a hospital visit, yet he testified that both his uncle
19 and parents brought him to the hospital, a statement which
20 conflicted with letters from his uncle and father. See Xiu Xia
21 Lin, 534 F.3d at 166 n.3 (“An inconsistency and an omission are
22 . . . functionally equivalent.”). When asked to explain these
23 discrepancies, Qiao reiterated that both his uncle and parents
3
1 accompanied him to the hospital and stated that he did not know
2 why his father and uncle would state otherwise. The agency was
3 not compelled to credit this explanation because Qiao did not
4 explain the inconsistencies. See Majidi v. Gonzales, 430 F.3d
5 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer
6 a plausible explanation for his inconsistent statements to
7 secure relief; he must demonstrate that a reasonable
8 fact-finder would be compelled to credit his testimony.”
9 (internal quotation marks omitted)).
10 The agency also reasonably relied on Qiao’s inconsistent
11 testimony regarding when he began attending church in the United
12 States—he testified that he began attending services in the
13 United States in May 2010, but his statement asserts that he
14 did not enter the United States until August 2010. Qiao’s
15 witness’s testimony raises a similar problem; she testified
16 that she met Qiao in the United States in June 2010, but this
17 was two months before his purported arrival date. The IJ
18 reasonably relied on these inconsistencies. 8 U.S.C.
19 § 1158(b)(1)(B)(iii) (listing inconsistencies between
20 applicant and witness as grounds for an adverse credibility
21 determination). The IJ was not compelled to accept Qiao’s
22 explanations that these were mistakes, particularly given the
4
1 additional inconsistencies in dates and in his witness’s
2 testimony. See Majidi, 430 F.3d at 80.
3 Finally, the agency reasonably relied on additional
4 inconsistencies among Qiao’s testimony, his witness’s
5 testimony, and his documentary evidence. Qiao’s testimony, a
6 letter from his church, and his witness’s affidavit all
7 identified the witness as a church elder. The witness
8 testified otherwise. The inconsistency is clear from the
9 record and unexplained; and the witness’s response that she just
10 signed what she was told further impugned her credibility. Id.
11 The inconsistencies between Qiao’s testimony and the
12 documentary evidence also support the agency’s conclusion that
13 Qiao failed to rehabilitate his credibility with reliable
14 corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d
15 268, 273 (2d Cir. 2007); see also Siewe v. Gonzales, 480 F.3d
16 160, 170 (2d Cir. 2007).
17 Given the multiple inconsistencies within and among the
18 testimony and documentary evidence, substantial evidence
19 supports the agency’s adverse credibility determination. See
20 Xiu Xia Lin, 534 F.3d at 165-66. That finding is dispositive
21 of asylum, withholding of removal, and CAT relief because all
22 three claims are based on the same factual predicate. See Paul
23 v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). Accordingly,
5
1 we do not reach the Government’s argument that Qiao failed to
2 exhaust his CAT claim. See also INS v. Bagamasbad, 429 U.S.
3 24, 25 (1976).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is VACATED,
7 and any pending motion for a stay of removal in this petition
8 is DISMISSED as moot. Any pending request for oral argument
9 in this petition is DENIED in accordance with Federal Rule of
10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
11 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
6