Bai v. Lynch , 658 F. App'x 10 ( 2016 )

14-4627
Bai v. Lynch
BIA
Christensen, IJ
A200 179 025
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
15th day of August, two thousand sixteen.
PRESENT:
GUIDO CALABRESI,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
XUEJIN BAI,
Petitioner,
v. 14-4627
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Dehai Zhang, Esq., Flushing, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; John S.
Hogan, Senior Litigation Counsel;
Nicole N. Murley, 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 Xuejin Bai, a native and citizen of the People’s
Republic of China, seeks review of a November 21, 2014 decision
of the BIA affirming a July 18, 2013 decision of an Immigration
Judge (“IJ”) denying Bai’s application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). See In re Xuejin Bai, No. A200 179 025 (B.I.A. Nov.
21, 2014), aff’g No. A200 179 025 (Immig. Ct. N.Y.C. July 18,
2013). Under the circumstances of this case, we review both
the IJ and the BIA opinion “for the sake of completeness,”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (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.
For asylum applications such as Bai’s, governed by the REAL
ID Act of 2005, the agency may, considering “the totality of
the circumstances,” base an adverse credibility determination
on an asylum applicant’s “demeanor, candor, or responsiveness,”
2
the plausibility of her account, and inconsistencies in her
statements, “without regard to whether” those inconsistencies
go “to the heart of the applicant’s claim.” 8 U.S.C. §
1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d 162,
165 (2d Cir. 2008). Under the “substantial evidence” standard
of review, “[w]e 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, 534 F.3d at 167.
The agency here reasonably relied on inconsistencies,
omissions, and Bai’s demeanor in finding her not credible.
First, the record supports the agency’s conclusion that Bai’s
testimony regarding the number of passports she had obtained
was inconsistent. Although Bai initially testified that she
had only had one passport in her life — the one that she used
to travel to the United States — the record indicates that she
had at least three. She conceded during her testimony that,
in 2009, she obtained a passport bearing a false name and her
picture, which she used to travel successfully to Japan after
she was forced to have an abortion. Further, the passport she
used to travel to the United States stated that it was a
replacement, thus indicating that Bai previously had yet
another passport. Insofar as Bai attempts to minimize her
3
testimony regarding the fraudulent passport she used to travel
to Japan, she did not raise that argument before the BIA and,
therefore, we decline to consider it here. See Lin Zhong v.
U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007)
(explaining that when “applicant for asylum or withholding of
removal has failed to exhaust an issue before the BIA, and that
issue is, therefore, not addressed in a reasoned BIA decision,”
we are, “by virtue of the ‘final order’ requirement of
§ 1252(d)(1), usually unable to review the argument”).
Second, the record also supports the agency’s conclusion
that Bai omitted from her asylum application any mention of the
six months she lived and worked in Japan in 2009. Bai testified
that in June 2009, approximately two months after she was forced
to have an abortion, she traveled to Japan and lived and worked
there for six months before being deported to China. Despite
completing an asylum application in 2011 that required her to
list her jobs and residences for the past five years and
providing with her application a written statement detailing
what happened after her forced abortion, Bai failed to include
in either document the fact that she lived and worked in Japan
from approximately June 2009 to December 2009. The IJ was
permitted to rely on this omission in assessing Bai’s
credibility, see Xiu Xia Lin, 534 F.3d at 166 n.3 (explaining
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that, for purposes of assessing credibility, “[a]n
inconsistency and an omission are . . . functionally
equivalent”), particularly given that Bai’s only explanation
for this omission was that she felt “that if [she] include[d]
it, it’s not good” because she also went to Japan to apply for
asylum, Certified Administrative Record (“CAR”) 83; see Majidi
v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (stating that
petitioner “must do more than offer a plausible explanation for
[her] inconsistent statements to secure relief; [s]he must
demonstrate that a reasonable fact-finder would be compelled
to credit [her] testimony”).
In urging otherwise, Bai relies on a pre-REAL ID Act case
to argue that her testimony regarding her time in Japan could
not form the basis for the agency’s credibility determination
because it had no bearing on her claim that she suffered
persecution in China. See Secaida-Rosales v. INS, 331 F.3d
297, 308 (2d Cir. 2003) (stating that adverse credibility
determination cannot rest on inconsistencies that “do not
concern the basis for the claim of asylum or withholding, but
rather matters collateral or ancillary to the claim”). The
argument fails because the REAL ID Act governs Bai’s
application, and permits an IJ to “rely on any inconsistency
or omission in making an adverse credibility determination as
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long as the ‘totality of the circumstances’ establishes that
an asylum applicant is not credible.” Xiu Xia Lin, 534 F.3d
at 167 (emphasis in original) (quoting 8 U.S.C.
§ 1158(b)(1)(B)(iii)) (concluding that REAL ID Act abrogated
circuit precedent, including Secaida-Rosales, which held that
IJ may not base adverse credibility determination on
inconsistencies that are collateral to applicant’s claim).
Third, the agency reasonably concluded that Bai testified
inconsistently about her divorce. Although Bai initially
testified that she was in China when she divorced her husband,
she subsequently testified that the divorce took place in
December 2009, when she was in Japan. When asked to explain
this inconsistency, Bai stated that she had been asked “too many
questions,” and ”got confused.” CAR 84. The agency was not
compelled to credit this explanation. See Majidi, 430 F.3d at
80.1
Fourth, the IJ also expressed doubts about Bai’s demeanor
— a finding that we accord deference given that an IJ is in the
1
Bai further argues in her brief to this court that she was
confused as to whether the government was asking about the
beginning or end of the divorce process. She did not, however,
provide that explanation when asked about the inconsistency
before the IJ, see Kulhawik v. Holder, 571 F.3d 296, 298 (2d
Cir. 2009) (“An attorney’s unsworn statements in a brief are
not evidence.”), and, even if she had provided such an
explanation at that time, the agency would not have been
compelled to credit it, see Majidi, 430 F.3d at 80.
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best position to observe an applicant’s demeanor while
testifying. See Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 73-74
(2d Cir. 2004), overruled on other grounds by Shi Liang Lin v.
U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007). The IJ here
observed that Bai was “evasive” when asked about the number of
passports she has had in her life. CAR 48. This finding is
strengthened by Bai’s inconsistent responses to that question.
See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d
Cir. 2006) (“We can be still more confident in our review of
observations about an applicant’s demeanor where, as here, they
are supported by specific examples of inconsistent
testimony.”).
Finally, the agency reasonably found that Bai failed to
rehabilitate her testimony with reliable documents. See Biao
Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
applicant’s failure to corroborate his or her 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.”). In so concluding, the
IJ declined to afford significant evidentiary weight to (1) a
letter from Bai’s mother because she was unavailable for
cross-examination; and (2) an unauthenticated hospital record
that did not establish that Bai’s 2009 abortion was involuntary,
7
see Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006) (noting
that the State Department China Profile of Asylum Cases states
“so-called ‘abortion certificates’ are most likely doctors’
excuse-letters for workers who undergo abortion voluntarily”).
We defer to the agency’s determination of the weight to be
afforded to these documents. See Y.C. v. Holder, 741 F.3d 324,
332 (2d Cir. 2013) (deferring to agency’s determination to give
letter “very little evidentiary weight” where letter was
unsworn and submitted by an interested witness).
Because substantial evidence supports the agency’s
findings that Bai provided inconsistent testimony, omitted
facts from her asylum application, and was evasive during her
testimony, we identify no basis to disturb the agency’s adverse
credibility determination, see 8 U.S.C. § 1158(b)(1)(B)(iii);
Xiu Xia Lin, 534 F.3d at 167, which is dispositive of Bai’s
claims for asylum, withholding of removal, and CAT relief, see
Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).2
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
2
Because the IJ’s credibility determination was an independent
basis on which to deny Bai’s requested relief, we need not
consider whether the agency erred in concluding that Bai failed
to establish her identity. See Cao He Lin v. U.S. Dep’t of
Justice, 428 F.3d 391, 401 (2d Cir. 2005).
8
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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