Ying Cheng v. Lynch ( 2015 )

13-480 (L)
Cheng v. Holder
BIA
Bain, IJ
A089 249 813
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 29th day of June, two thousand fifteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
YING CHENG,
Petitioner,
13-480(L);
v. 13-2951(Con)
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jim Li, Flushing, New York.
FOR RESPONDENT: Joyce R. Branda, Acting Assistant
Attorney General; Erica B. Miles,
Senior Litigation Counsel; Jesse
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Lloyd Busen, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of these petitions for review of
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petitions for review
are DENIED.
Ying Cheng, a native and citizen of the People’s Republic
of China, seeks review of a January 31, 2013, decision of the
BIA affirming an Immigration Judge’s (“IJ”) December 28, 2010,
decision denying her application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”); and a July 15, 2013, BIA decision denying her motion
to reopen. In re Ying Cheng, No. A089 249 813 (B.I.A. Jan. 31,
2013), aff’g No. A089 249 813 (Immig. Ct. N.Y. City Dec. 28,
2010); In re Ying Cheng, No. A089 249 813 (B.I.A. July 15, 2013).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
I. Asylum, Withholding of Removal, and CAT Relief
Cheng challenges for the first time in this appeal the IJ’s
adverse credibility and burden findings with respect to the
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denial of her application for asylum, withholding of removal,
and CAT protection based on her Falun Gong activities. We
decline to address the IJ’s burden finding because the
government properly raised the affirmative defense of issue
exhaustion. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
104, 124-25 (2d Cir. 2007). The government does not raise the
defense of issue exhaustion on Cheng’s adverse credibility
finding, however, and the government’s affirmative defense on
this issue was waived. See id.
Under the circumstances of this case, we have reviewed the
IJ’s decision as modified by the BIA. Xue Hong Yang v. U.S.
Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
applicable standards of review are well-established. 8 U.S.C.
§ 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
2009).
For asylum applications like Cheng’s, governed by the REAL
ID Act of 2005, the agency may, “considering the totality of
the circumstances,” base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of her account, and inconsistencies in her
statements, “without regard to whether” they go “to the heart
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of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). “We 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. Here, the adverse credibility
determination is supported by substantial evidence.
First, Cheng’s testimony and application statement were
inconsistent regarding the circumstances surrounding her
detention in 1999, the length of her detention in August 2001,
and whether authorities discovered her family’s Falun Gong
materials and issued a warrant for her brother’s arrest in 2007.
See Xiu Xia Lin, 534 F.3d at 166-67 & n.3. Cheng did not provide
compelling explanations for these inconsistencies. See Majidi
v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
In addition to these inconsistencies, Cheng’s evasive
testimony regarding her brother’s purported arrest warrant and
her entry into the country, as well as her vague testimony
regarding her release from detention further support the
adverse credibility determination. See Li Zu Guan v. INS, 453
F.3d 129, 140 (2d Cir. 2006); see also Li Hua Lin v. U.S. Dep’t
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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.”).
Moreover, Cheng’s failure to provide corroboration of the
incidents in China further bore negatively on her credibility.
See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
The IJ was not compelled to credit Cheng’s explanation that she
feared for her family’s safety if they were to mail
corroborating letters, given that she had presumably put them
at risk by having them mail her identity documents in support
of her asylum application. See Majidi, 430 F.3d at 80-81.
Given Cheng’s inconsistent and vague testimony, as well as her
evasive demeanor and lack of corroboration, the totality of the
circumstances supports the agency’s adverse credibility
finding. See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);
Xiu Xia Lin, 534 F.3d at 167.
II. Motion to Reopen
We review the BIA’s denial of a motion to reopen for an abuse
of discretion, mindful of the Supreme Court’s admonition that
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such motions are “disfavored.” INS v. Doherty, 502 U.S. 314,
322-23 (1992); Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).
Aliens seeking to reopen proceedings may move to reopen no later
than 90 days after the final administrative decision was
rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). Cheng concedes that her motion to reopen was
not made within this statutory period. However, the limitation
period may be tolled if the alien can demonstrate ineffective
assistance of counsel. Rashid v. Mukasey, 533 F.3d 127, 130
(2d Cir. 2008). To benefit from equitable tolling, the alien
must demonstrate “that competent counsel would have acted
otherwise, and that [s]he was prejudiced by h[er] counsel’s
performance.” Id. at 131 (quotation marks and alterations
omitted).
The BIA reasonably determined that Cheng was not entitled
to equitable tolling because she failed to demonstrate
prejudice arising from her prior attorney’s alleged ineffective
assistance. Although Cheng argued that her attorney failed to
corroborate her claims and present additional witnesses on her
behalf, the BIA accurately found that she failed to specify the
evidence or witnesses counsel should have presented and how
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additional actions by counsel would have altered the outcome
of the hearing. See Rabiu v. INS, 41 F.3d 879, 882 (2d Cir.
1994). The BIA also reasonably found that Cheng did not
persuasively explain how her counsel’s ineffectiveness was the
cause of her inconsistent and implausible testimony, or how the
failure to amend the declaration in support of her asylum
application prejudiced the outcome of her case. Cheng had an
opportunity to amend the declaration prior to her hearing and
failed to do so. She also failed to submit a revised declaration
with her motion to reopen and contrary to Cheng’s contention,
the BIA considered and reasonably rejected her argument that
she was prejudiced by her counsel’s failure to challenge the
IJ’s adverse credibility finding on appeal.
For the foregoing reasons, the petitions for review are
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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