Jiang Ling v. Lynch ( 2016 )

15-1388
Ling v. Lynch
BIA
Poczter, IJ
A205 083 153
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 8th day of September, two thousand sixteen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 JIANG LING,
14 Petitioner,
15
16 v. 15-1388
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Zhen Liang Li, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Anthony
27 P. Nicastro, Acting Assistant
28 Director; Sabatino F. Leo, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 D.C.
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 is
4 DENIED.
5 Petitioner Jiang Ling, a native and citizen of the People’s
6 Republic of China, seeks review of a March 30, 2015, decision
7 of the BIA, affirming an April 9, 2013, decision of an
8 Immigration Judge (“IJ”) denying Ling’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Jiang Ling, No. A205 083 153 (B.I.A.
11 A.K. Marsh. 30, 2015), aff’g No. A205 083 153 (Immig. Ct. N.Y. City
12 Apr. 9, 2013). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we review both the
15 IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432 F.3d
16 391, 394 (2d Cir. 2005). The applicable standards of review
17 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
18 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
19 For asylum applications like Ling’s, governed by the REAL
20 ID Act, the agency may, “[c]onsidering the totality of the
21 circumstances,” base a credibility finding on an asylum
22 applicant’s “demeanor, candor, or responsiveness,” and
23 inconsistencies in her or her witness’s statements, “without
2
1 regard to whether” those inconsistencies go “to the heart of
2 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
3 Xia Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s
4 credibility determination unless, from the totality of the
5 circumstances, it is plain that no reasonable fact-finder could
6 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
7 at 167. As discussed below, substantial evidence supports the
8 adverse credibility determination.
9 The agency reasonably rested its adverse credibility
10 determination on inconsistencies between Ling’s testimony and
11 her mother’s letter. Id. at 166-67. First, Ling testified
12 that her mother took her to a chiropractor for treatment after
13 she was released from detention, but when asked why her mother’s
14 letter omitted that visit, responded that her testimony was
15 correct. See id. at 166-67 & n.3 (“An inconsistency and an
16 omission are . . . functionally equivalent” for credibility
17 purposes). The agency was not required to credit this
18 explanation because it did not account for why Ling’s mother
19 omitted this information from the letter. See Majidi v.
20 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
21 do more than offer a plausible explanation for his inconsistent
22 statements to secure relief; he must demonstrate that a
23 reasonable fact-finder would be compelled to credit his
3
1 testimony.”). Second, Ling testified that she hid at her
2 friend’s home after escaping a police raid in 2010, but her
3 mother’s letter stated that Ling hid at a relative’s home. The
4 agency was not required to credit Ling’s explanation that her
5 mother considered her friend as her son. See Majidi, 430 F.3d
6 at 80. The agency also reasonably found both inconsistencies
7 significant because they related to events that occurred in the
8 immediate aftermath of Ling’s only two encounters with police,
9 which called into doubt whether those encounters had occurred
10 at all. See Xiu Xia Lin, 534 F.3d at 167.
11 The agency also reasonably relied on the inconsistencies
12 between Ling’s testimony and credible-fear interview
13 concerning her treatment in detention. See Ming Zhang v.
14 Holder, 585 F.3d 715, 724-25 (2d Cir. 2009) (observing that
15 inconsistencies arising from a credible-fear interview may
16 serve as an appropriate basis for an adverse credibility
17 determination). First, Ling testified that, while detained,
18 she had been kicked in the stomach and slapped, and had her hair
19 pulled. But when asked at her credible-fear interview whether
20 anything happened to her in detention, she responded: “They
21 interrogated me and did not give me any food or drink for one
22 day.” The agency was not required to credit Ling’s explanation
23 that her testimony was correct because it did not account for
4
1 why she omitted this information during her credible-fear
2 interview. See Majidi, 430 F.3d at 80. Second, Ling testified
3 that the police destroyed her bible in detention but omitted
4 this from her application and credible-fear interview. Ling
5 does not challenge the agency’s reliance on this omission in
6 her brief. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.
7 1998). The agency, moreover, reasonably found both
8 inconsistencies to be significant because they concerned the
9 sole incident of alleged persecution. See Xiu Xia Lin, 534 F.3d
10 at 163-64.
11 We decline to consider Ling’s unexhausted challenge to the
12 reliability of the credible-fear interview. Ling did not
13 challenge the reliability of that interview before the BIA, the
14 BIA did not address the issue, and the Government asserts
15 exhaustion. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
16 104, 123-25 (2d Cir. 2007) (providing that judicially imposed
17 issue exhaustion is mandatory).
18 The agency also did not err in concluding that Ling’s
19 corroborating evidence was insufficient to rehabilitate her
20 credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
21 Cir. 2007) (recognizing that “[a]n applicant’s failure to
22 corroborate his . . . testimony may bear on credibility,
23 because the absence of corroboration in general makes an
5
1 applicant unable to rehabilitate testimony that has already
2 been called into question” or is viewed as suspicious). The
3 agency reasonably gave diminished weight to Ling’s
4 corroborating evidence: the letter from her mother was
5 inconsistent with Ling’s testimony, and the letters from fellow
6 church members in China were from interested parties not subject
7 to cross examination. See Matter of H-L-H- & Z-Y-Z-, 25 I. &
8 N. Dec. 209, 215 (B.I.A. 2010), rev’d on other grounds by Hui
9 Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); see also Y.C.
10 v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the
11 agency's determination of the weight afforded to an alien's
12 documentary evidence.”).
13 Given the foregoing inconsistencies, omissions, and Ling’s
14 insufficient corroborating evidence, the totality of the
15 circumstances supports the credibility ruling. Xiu Xia Lin,
16 534 F.3d at 167. Because Ling’s claims for relief were based
17 on the same factual predicate, the adverse-credibility
18 determination is dispositive of asylum, withholding of removal,
19 and CAT relief. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
20 2006).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of removal
23 that the Court previously granted in this petition is VACATED,
6
1 and any pending motion for a stay of removal in this petition
2 is DISMISSED as moot. Any pending request for oral argument
3 in this petition is DENIED in accordance with Federal Rule of
4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
7