Hang Jian Cui v. Lynch ( 2016 )

15-1270
Cui v. Lynch
BIA
Poczter, IJ
A205 038 495
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 13th day of September, two thousand sixteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 REENA RAGGI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 HANG JIAN CUI,
14 Petitioner,
15
16 v. 15-1270
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Daniel W. Worontzoff, The
24 Worontzoff Law Office, PLLC,
25 Flushing, New York.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal
28 Deputy Assistant Attorney
29 General; Linda S. Werney,
30 Assistant Director; Theodore C.
31 Hirt, Senior Litigation Counsel,
1 Office of Immigration Litigation,
2 United States Department of
3 Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Petitioner Hang Jian Cui, a native and citizen of the
10 People’s Republic of China, seeks review of a March 24, 2015,
11 decision of the BIA, affirming a January 28, 2013, decision of
12 an Immigration Judge (“IJ”) denying Cui’s application for
13 asylum, withholding of removal, and relief under the Convention
14 Against Torture (“CAT”). In re Hang Jian Cui, No. A205 038 495
15 (B.I.A. Mar. 24, 2015), aff’g No. A205 038 495 (Immig. Ct. N.Y.
16 City Jan. 28, 2013). We assume the parties’ familiarity with
17 the underlying facts and procedural history in this case.
18 Under the circumstances of this case, we have reviewed both
19 the BIA’s and IJ’s decisions. See Yun-Zui Guan v. Gonzales,
20 432 F.3d 391, 394 (2d Cir. 2005). The standards of review are
21 well established. See 8 U.S.C. § 1252(b)(4); Xiu Xia Lin v.
22 Mukasey, 534 F.3d 162, 165 (2d Cir. 2008).
23 The agency may, “[c]onsidering the totality of the
24 circumstances,” base a credibility finding on inconsistencies
2
1 in an applicant’s statements and other record evidence “without
2 regard to whether” those inconsistencies go “to the heart of
3 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
4 Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s credibility
5 determination unless . . . it is plain that no reasonable
6 fact-finder could make such an adverse credibility ruling.”
7 Xiu Xia Lin, 534 F.3d at 167. Further, “[a] petitioner must
8 do more than offer a plausible explanation for his inconsistent
9 statements to secure relief; he must demonstrate that a
10 reasonable fact-finder would be compelled to credit his
11 testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)
12 (emphasis in original) (internal quotation marks and citations
13 omitted). Substantial evidence supports the agency’s
14 determination that Cui was not credible.
15 The BIA reasonably relied on record inconsistencies among
16 Cui’s testimony, his written statement, and a letter from his
17 aunt regarding whether and how often the police contacted his
18 aunt after he left China. See Xiu Xia Lin, 534 F.3d at 166 n.3
19 (“An inconsistency and an omission are . . . functionally
20 equivalent.”). Further, Cui’s explanations regarding these
21 discrepancies were insufficient given that his explanations
22 themselves did not account for differences in the number of
3
1 times his aunt was contacted and whether she was threatened with
2 a fine. See Majidi, 430 F.3d at 80. The BIA also reasonably
3 found that this inconsistency went “to the heart” of Cui’s
4 asylum claim because it was directly related to the surveillance
5 that Cui claimed to have fled and to the basis for his fear of
6 future persecution. See Xian Tuan Ye v. DHS, 446 F.3d 289, 295
7 (2d Cir. 2006) (holding that the substantial evidence standard
8 is satisfied by a material inconsistency related to “an example
9 of the very persecution from which [an applicant] sought asylum”
10 (internal quotation marks omitted)).
11 The BIA also reasonably relied on Cui’s conflicting
12 testimony regarding why he came to the United States: to escape
13 persecution or to study. Cui argues that this testimony shows
14 only that he had a “dual purpose” for coming to the United
15 States, not that he was inconsistent. He contends that the IJ
16 erred in questioning his credibility based on “her perception
17 of his intent.” However, neither the BIA nor the IJ
18 mischaracterized Cui’s statements: Cui stated several times
19 that the reason he came to the United States was to study and
20 it was not unreasonable for the agency to rely on those
21 statements in assessing Cui’s credibility, particularly where
22 the changing explanation called into question the extent of his
4
1 fear of persecution. Cf. Ramsameachire v. Ashcroft, 357 F.3d
2 169, 178 (2d Cir. 2004) (in addressing burden for well-founded
3 fear showing, explaining that applicant must have a subjective
4 fear, that is a “genuine” fear of persecution”).
5 Cui additionally challenges the IJ’s finding that it was
6 implausible for him to have obtained a student visa while under
7 government surveillance. However, his testimony was
8 questionable. Cui’s ability to obtain a student visa conformed
9 with his testimony that his situation was “not that serious,”
10 but conflicted with his claim that the Chinese government was
11 monitoring his actions across provinces in China. See Wensheng
12 Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007); Siewe v.
13 Gonzales, 480 F.3d 160, 169 (2d Cir. 2007).
14 Viewing the record under the “totality of the
15 circumstances,” the adverse credibility determination is
16 supported by substantial evidence even without the
17 implausibility finding because the inconsistencies discussed
18 by the BIA were material to Cui’s claim. See Xiu Xia Lin, 534
19 F.3d at 165-66; see Xian Tuan Ye, 446 F.3d at 295. That finding
20 is dispositive of asylum, withholding of removal, and CAT relief
21 because all three claims are based on the same factual
5
1 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
2 2006).
3 We decline to reach Cui’s challenges to the corroboration
4 findings because he did not raise them on appeal to the BIA.
5 Nor did the BIA address them. As the Government argues, the
6 challenges are therefore unexhausted and not subject to
7 judicial review. See Lin Zhong v. U.S. Dep’t of Justice, 480
8 F.3d 104, 122 (2d Cir. 2007) (providing that judicially imposed
9 issue exhaustion is mandatory).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
6