Qi Xiong Sun v. Lynch ( 2015 )

14-1140
Sun v. Lynch
BIA
Cheng, IJ
A087 545 560
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 30th day of April, two thousand fifteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 QI XIONG SUN, AKA QIXIONG SUN,
14 Petitioner,
15
16 v. 14-1140
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.1
21 _____________________________________
22
23
24 FOR PETITIONER: Gary J. Yerman, New York, NY.
25
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Loretta E. Lynch is automatically substituted for former Attorney General Eric
H. Holder, Jr.
1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
2 Attorney General; M. Jocelyn Lopez
3 Wright, Senior Litigation Counsel;
4 Lori B. Warlick, Trial Attorney,
5 Office of Immigration Litigation,
6 United States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review is
12 DENIED.
13 Petitioner Qi Xiong Sun, a native and citizen of China,
14 seeks review of a March 25, 2014, decision of the BIA affirming
15 a February 9, 2012, decision of an Immigration Judge (“IJ”),
16 denying Sun’s application for asylum, withholding of removal,
17 and relief under the Convention Against Torture (“CAT”). In
18 re Sun, No. A087 545 560 (B.I.A. Mar. 25, 2014), aff’g No. A087
19 545 560 (Immig. Ct. N.Y. City Feb. 9, 2012). We assume the
20 parties’ familiarity with the underlying facts and procedural
21 history in this case.
22 We have reviewed the IJ’s decision as supplemented by the
23 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
24 The applicable standards of review are well established. See
2
1 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534
2 F.3d 162, 165-66 (2d Cir. 2008).
3 Because Sun only substantively challenged the denial of
4 asylum before the BIA, his challenges to the IJ’s denial of
5 withholding of removal and CAT relief are unexhausted. See 8
6 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d
7 Cir. 2006).
8 For asylum applications governed by the REAL ID Act, such
9 as Sun’s, the IJ may, considering the totality of the
10 circumstances, base a credibility finding on an asylum
11 applicant’s demeanor, candor, or responsiveness, and
12 inconsistencies in his statements and other record evidence,
13 without regard to whether they go “to the heart of the
14 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
15 Lin, 534 F.3d at 163-65. Here, the totality of the
16 circumstances, including Sun’s inconsistent testimony and
17 demeanor, support the IJ’s adverse credibility determination.
18 The agency reasonably found that Sun testified
19 inconsistently as to whether he was hospitalized in China for
20 one week. Sun testified on cross-examination that he was
21 hospitalized for one week after government officials detained
3
1 and beat him, but failed to mention this event during direct
2 examination. The medical record Sun submitted to corroborate
3 his claim does not show that he was hospitalized at all, but
4 instead reflects an “outpatient diagnosis” for treatment that
5 Sun received on a single day. The agency also reasonably relied
6 on Sun’s failure to mention that he was hospitalized in his
7 personal statement. See Xiu Xia Lin, 534 F.3d at 166 n.3. When
8 confronted with these discrepancies, Sun asserted that the
9 letter from his father confirmed his testimony. But the letter
10 merely states that Sun’s father brought him to see a doctor,
11 and does not suggest that Sun was hospitalized. Although the
12 inconsistent evidence all relates to a single incident, the
13 inconsistencies provide substantial support for the IJ’s
14 adverse credibility determination because they directly relate
15 to the one instance of persecution Sun alleges. See Xian Tuan
16 Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006).
17 The IJ also reasonably found Sun’s corroborating evidence
18 insufficient. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
19 Cir. 2007). Sun testified that his church in China was aware
20 of his arrest, but the church’s letter makes no mention of it.
21 Furthermore, although Sun presented a witness to corroborate
4
1 his church attendance in the United States, the IJ reasonably
2 found the witness’s testimony was of limited weight because she
3 was not an official spokesperson of the church. See Xiao Ji
4 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).
5 Finally, the IJ also reasonably relied in part on Sun’s
6 demeanor, finding his testimony nonresponsive and evasive.
7 See Dong Gao v. BIA, 482 F.3d 122, 126-27 (2d Cir. 2007). The
8 record confirms that Sun was nonresponsive and evasive when
9 asked to explain the several inconsistencies regarding his
10 hospital visit, and the IJ noted that he became “flustered”
11 during this line of questioning. We can be more confident in
12 relying on a demeanor finding where, as here, it is “supported
13 by specific examples of inconsistent testimony.” Li Hua Lin
14 v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of removal
17 that the Court previously granted in this petition is VACATED,
18 and any pending motion for a stay of removal in this petition
19 is DISMISSED as moot. Any pending request for oral argument
20 in this petition is DENIED in accordance with Federal Rule of
5
1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
2 34.1(b).
3 FOR THE COURT:
4 Catherine O=Hagan Wolfe, Clerk
6