Yan v. Barr ( 2019 )

17-3898
Yan v. Barr
BIA
Poczter, IJ
A208 922 045
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 29th day of October, two thousand nineteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 PETER W. HALL,
9 MICHAEL H. PARK,
10 Circuit Judges.
11 _____________________________________
12
13 YOULIN YAN,
14 Petitioner,
15
16 v. 17-3898
17 NAC
18
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: John S. Yong, New York, NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant
27 Attorney General; Linda S.
28 Wernery, Assistant Director;
29 Steven K. Uejio, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of
32 Justice, 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
4 is DENIED.
5 Petitioner Youlin Yan, a native and citizen of the
6 People’s Republic of China, seeks review of a November 15,
7 2017, decision of the BIA affirming a March 13, 2017, decision
8 of an Immigration Judge (“IJ”) denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Youlin Yan, No.
11 A208 922 045 (B.I.A. Nov. 15, 2017), aff’g No. A208 922 045
12 (Immig. Ct. N.Y. City Mar. 13, 2017). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Wangchuck v. Dep’t of Homeland Security, 448
18 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
19 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
20 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
21 Adverse Credibility Determination
22 “Considering the totality of the circumstances, and all
23 relevant factors, a trier of fact may base a credibility
2
1 determination on . . . the consistency between the applicant’s
2 or witness’s written and oral statements . . . [and] the
3 internal consistency of each such statement . . . without
4 regard to whether an inconsistency, inaccuracy, or falsehood
5 goes to the heart of the applicant’s claim.” 8 U.S.C.
6 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
7 163-64 (2d Cir. 2008). Substantial evidence supports the
8 agency’s determination that Yan was not credible as to his
9 claim that police sought to arrest him after they raided his
10 unregistered church in China.
11 The agency reasonably relied on the fact that Yan omitted
12 from his asylum application and his father omitted from his
13 statement Yan’s assertion that police had searched for him an
14 additional ten times at his family’s home following their
15 initial visit after the raid on his church. See 8 U.S.C.
16 § 1158(b)(1)(B)(iii); see also Hong Fei Gao, 891 F.3d at 78-
17 82. Although asylum applicants are not required to list
18 every incident or provide every detail in their asylum
19 applications, Hong Fei Gao, 891 F.3d at 78, Yan attached a
20 detailed, four-page written statement, which included
21 information less pertinent than the ten police searches.
22 Further, the fact that police visited his parents’ house more
23 than once and as many as ten times was information “that a
3
1 credible petitioner would reasonably have been expected to
2 disclose under the relevant circumstances,” Hong Fei Gao, 891
3 F.3d at 79, particularly given that Yan did not suffer past
4 persecution and his asylum claim was therefore based entirely
5 on whether police in China remained interested in him and
6 would seek to harm him in the future, see 8 C.F.R.
7 § 1208.13(b). Similarly, although his father’s affidavit
8 discusses at length reasons Yan joined the church and
9 discusses police attempting to arrest Yan on the day of the
10 raid, it does not mention that police continued to look for
11 Yan after that day. See Hong Fei Gao, 891 F.3d at 78 (“[T]he
12 probative value of a witness’s . . . silence on particular
13 facts depends on whether those facts are ones the witness
14 would reasonably have been expected to disclose.”).
15 The IJ also reasonably relied, in part, on Yan’s
16 misrepresentation on his asylum application of his military
17 service and residences in China. An asylum applicant’s
18 presentation of “a single false document or a single instance
19 of false testimony may (if attributable to the petitioner)
20 infect the balance of the alien’s uncorroborated or
21 unauthenticated evidence.” Siewe v. Gonzales, 480 F.3d 160,
22 170 (2d Cir. 2007); see also Borovikova v. U.S. Dep’t of
23 Justice, 435 F.3d 151, 157-58 (2d Cir. 2006). Although there
4
1 are limitations to the “maxim falsus in uno, falsus in omnibus
2 (false in one thing, false in everything),” including when
3 the false evidence or statements were necessary to escape
4 persecution, Siewe, 480 F.3d at 170 (internal quotation marks
5 omitted), Yan was not fleeing persecution when he made false
6 statements in his asylum application and swore to the truth
7 of its contents in March 2017, one year after he entered the
8 United States. Further, the IJ acknowledged that, in a
9 section titled “Notes” in the written statement appended to
10 the application, Yan admitted that he had lied about his
11 military service when speaking to immigration officials
12 during a credible fear interview shortly after he entered the
13 United States. However, the IJ was not compelled to conclude
14 that Yan’s admission rendered him credible as he continued to
15 misrepresent his military service and residences in the
16 application itself and conceded that he did so in part to
17 avoid being removed. See Majidi v. Gonzales, 430 F.3d 77,
18 80 (2d Cir. 2005) (“A petitioner must do more than offer a
19 plausible explanation for his inconsistent statements to
20 secure relief; he must demonstrate that a reasonable fact-
21 finder would be compelled to credit his testimony.” (internal
22 quotations omitted)).
23 Having questioned Yan’s credibility, the agency
5
1 reasonably relied further on his failure to rehabilitate his
2 testimony with reliable corroborating evidence. “An
3 applicant’s failure to corroborate his or her testimony may
4 bear on credibility, because the absence of corroboration in
5 general makes an applicant unable to rehabilitate testimony
6 that has already been called into question.” Biao Yang v.
7 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The IJ reasonably
8 noted that statements from Yan’s father, church friend, and
9 church in China did not rehabilitate Yan’s claim because they
10 did not mention that police continued to look for him. The
11 IJ also reasonably noted that Yan failed to submit a sworn
12 statement from his friend Mr. Wang, who purportedly
13 introduced Yan to Christianity and with whom Yan remained in
14 contact until two months before his hearing.
15 Although the IJ may have erred in relying on a minor date
16 discrepancy in Yan’s father’s statement that Yan immediately
17 identified and in noting that Yan failed to submit a written
18 statement from his friend Mr. Zhang, the omissions, false
19 statements, and lack of corroboration discussed above
20 constitute substantial evidence supporting the adverse
21 credibility determination. See 8 U.S.C.
22 § 1158(b)(1)(B)(iii). That determination is dispositive of
23 asylum, withholding of removal, and CAT relief insofar as
6
1 those claims were based on Yan’s fear of persecution on
2 account of the police raid on the church gathering he attended
3 in 2016. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
4 2006).
5 Burden of Proof
6 Because Yan was not credible as to his claim that Chinese
7 police were aware of and wanted to arrest him for his past
8 religious activities, he had to establish a well-founded fear
9 persecution based on his current religious practice by
10 showing a reasonable possibility that he would be singled out
11 for persecution or that there was a pattern or practice of
12 persecution of similarly situated Christians. See 8 C.F.R.
13 § 1208.13(b)(2)(iii). Yan also was required to “make some
14 showing that authorities in his country of nationality are
15 either aware of his activities or likely to become aware of
16 his activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135,
17 143 (2d Cir. 2008).
18 The agency did not err in finding that Yan failed to
19 establish a well-founded fear of persecution by showing
20 either that Chinese officials are likely to become aware of
21 his religious practice and single him out for persecution or
22 that there was a pattern or practice of persecution of
23 similarly situated Christians. The country conditions
7
1 evidence provides that tens of millions of Christians
2 practice in unregistered churches in China and that in some
3 areas they do so without interference. Yan failed to provide
4 evidence of any religious persecution in his home province
5 even though the country conditions evidence mentioned other
6 areas of China with specificity. Cf. Jian Hui Shao v.
7 Mukasey, 546 F.3d 138, 142, 149, 169 (2d Cir. 2008) (finding
8 no error in the BIA’s requirement that an applicant
9 demonstrate that officials in his or her local area enforce
10 a government policy in a manner that would give rise to a
11 well-founded fear of persecution when the country conditions
12 evidence demonstrates local variations in the enforcement of
13 that policy).
14 Given the large number of Christians practicing in
15 unregistered churches and the fact that the restrictions on
16 their activities varied by region, the agency did not err in
17 determining that Yan failed to demonstrate that officials are
18 likely to become aware of his religious practice or that there
19 was systemic or pervasive persecution of similarly situated
20 Christians sufficient to demonstrate a pattern and practice
21 of persecution. See 8 C.F.R. § 1208.13(b)(2)(iii); see also
22 Hongsheng Leng, 528 F.3d at 143; Santoso v. Holder, 580 F.3d
23 110, 112 & n.1 (2d Cir. 2009); In re A-M-, 23 I. & N. Dec.
8
1 737, 741 (BIA 2005). Accordingly, because the agency
2 reasonably found that Yan failed to demonstrate a well-
3 founded fear of persecution on account of his continued
4 religious practice, it did not err in denying asylum,
5 withholding of removal, and CAT relief to that extent. See
6 Paul, 444 F.3d at 156-57.
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, the pending motion
9 for a stay of removal in this petition is DISMISSED as moot.
10 See Dkt. No. 10.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe
13 Clerk of Court
9