Jian Hui He v. Holder , 589 F. App'x 587 ( 2014 )

13-3188
He v. Holder
BIA
Schoppert, IJ
A087 462 832
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
2 Appeals for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of New
4 York, on the 4th day of November, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 JIAN HUI HE,
14
15 Petitioner,
16
17 v. 13-3188
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED
21 STATES ATTORNEY GENERAL,
22
23 Respondent.
24
25 _____________________________________
26
27 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, N.Y.
28
29
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Carl McIntyre, Assistant
3 Director; Andrew Oliveira, Trial
4 Attorney, Office of Immigration
5 Litigation, United States Department
6 of Justice, Washington D.C.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Jian Hui He, a native and citizen of China, seeks
12 review of a July 26, 2013, decision of the BIA affirming the
13 December 14, 2011, decision of an Immigration Judge (“IJ”),
14 which denied his application for asylum, withholding of
15 removal, and relief pursuant to the Convention Against
16 Torture (“CAT”). In re Jian Hui He, No. A087 462 832
17 (B.I.A. July 26, 2013), aff’g No. A087 462 832 (Immig. Ct.
18 N.Y.C. Dec. 14, 2011). We assume the parties’ familiarity
19 with the underlying facts and procedural history in this
20 case.
21 Under the circumstances of this case, we have reviewed
22 the IJ’s decision as supplemented by the BIA. See Yan Chen
23 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
24 applicable standards of review are well established. See 8
25
2
1 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
2 513 (2d Cir. 2009).
3 We conclude that the agency’s findings provide
4 substantial evidence to support the adverse credibility
5 determination. For asylum applications, like He’s, governed
6 by the REAL ID Act of 2005, the agency may, “[c]onsidering
7 the totality of the circumstances,” base a credibility
8 determination on an asylum applicant’s demeanor, the
9 plausibility of his account, and any inconsistencies in his
10 statements, “without regard to whether” they go “to the
11 heart of the applicant’s claim.” 8 U.S.C.
12 § 1158(b)(1)(B)(iii). “We defer therefore to [the agency’s]
13 credibility determination unless, from the totality of the
14 circumstances, it is plain that no reasonable fact-finder
15 could make such an adverse credibility ruling.” Xiu Xia Lin
16 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
17 The agency reasonably based its adverse credibility
18 determination on the inconsistencies between He’s testimony
19 and the information contained in a Treasury Enforcement
20 Communications System (“TECS”) document. He testified that
21 he was arrested and beaten in China in July 2007, left China
22 in April 2008, and had not previously traveled outside of
23 the country. However, the TECS document showed that he
3
1 passed through Hong Kong on his way to Colombia via Paris,
2 France in March 2007, prior to his alleged persecution. He
3 does not dispute the inconsistency, but instead argues that
4 the TECS document is unreliable because: (1) it listed his
5 sex as female; (2) the government did not identify who
6 collected or recorded the information; and (3) it was
7 unclear in which country the information was recorded.
8 These arguments are unavailing. The Federal Rules of
9 Evidence and the heightened procedural protections of a
10 criminal trial do not apply to the admission of documentary
11 evidence in a removal proceeding. See Felzcerek v. INS, 75
12 F.3d 112, 115 (2d Cir. 1996); Aslam v. Mukasey, 537 F.3d
13 110,114 (2d Cir. 2008). While the document inaccurately
14 identified He as female, given the accuracy of the other,
15 more detailed identifying information, i.e., He’s name, date
16 of birth, and passport number, it was not error for the
17 agency to rely on the document.
18 He’s reliance on a Third Circuit case is misplaced.
19 The Third Circuit held that a State Department report,
20 submitted to show an alien had forged documents, was
21 unreliable because it contained “multiple hearsay of the
22 most troubling kind” and gave no information as to the
23 investigation that took place. Ezeagwuna v. Ashcroft, 325
4
1 F.3d 396, 406-08 (3d Cir. 2003). In contrast, the TECS
2 document was used only to show identifying information and
3 He’s travel route, which did not require a qualitative
4 assessment. Moreover, when, as here, a record is created as
5 part of the routine duties of government officials, courts
6 presume that they have properly discharged their official
7 duties, absent clear evidence to the contrary. Nat’l
8 Archives & Records Admin. v. Favish, 541 U.S. 157, 174
9 (2004).
10 Having called He’s credibility into question, the
11 agency reasonably determined that his failure to corroborate
12 the approximate date that he left China further undermined
13 his claim. See 8 U.S.C. § 1158(b)(1)(B)(ii) (providing that
14 “[t]he testimony of the applicant may be sufficient to
15 sustain the applicant’s burden without corroboration, but
16 only if the applicant satisfies the trier of fact that the
17 applicant’s testimony is credible, is persuasive, and refers
18 to specific facts sufficient to demonstrate that the
19 applicant is a refugee” (emphasis added)). “An applicant’s
20 failure to corroborate his . . . testimony may bear on
21 credibility, because the absence of corroboration in general
22 makes an applicant unable to rehabilitate testimony that has
23 already been called into question.” Biao Yang v. Gonzales,
5
1 496 F.3d 268, 273 (2d Cir. 2007). He’s brother-in-law
2 testified that he called He in April 2008, when He was
3 purportedly in China. The agency reasonably gave little
4 weight to this testimony because the telephone records did
5 not show any outgoing calls to China, and there was no
6 objective evidence verifying that a phone card was used to
7 make the call.
8 He also submitted a letter from his father, who stated
9 that the entire family, including He, was detained and
10 beaten in July 2007 and that He left China in April 2008;
11 and a letter from a member of his church in China attesting
12 to the July 2007 incident. The agency reasonably afforded
13 less weight to this evidence because the letters were
14 unsworn and from interested witnesses not subject to cross
15 examination. See In re H-L-H & Z-Y-Z, 25 I. & N. Dec. 209,
16 215 (B.I.A. 2010) (giving diminished evidentiary weight to
17 letters from relatives because they were “interested
18 witnesses who were not subject to cross-examination”), rev’d
19 on other grounds by Hui Lin Huang v. Holder, 677 F.3d 13020 (2d Cir. 2012); see also Xiao Ji Chen v. U.S. Dep’t of
21 Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding weight
22 accorded to applicant’s evidence lies largely within agency
23 discretion).
6
1 Given that the inconsistency calls into question He’s
2 presence in China at the time of his alleged persecution,
3 the totality of the circumstances supports the adverse
4 credibility determination. Because all of He’s claims
5 depend on the same factual predicate, the adverse
6 credibility determination is dispositive of He’s
7 applications for asylum, withholding of removal, and CAT
8 relief. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
9 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
10 523 (2d Cir. 2005).
11
12 For the foregoing reasons, the petition for review is
13 DENIED. He’s request for oral argument in this petition is
14 DENIED in accordance with Federal Rule of Appellate
15 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
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