Suo v. Barr ( 2020 )

19-1340
Suo v. Barr
BIA
Zagzoug, IJ
A206 565 581
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 18th day of December, two thousand twenty.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 ROBERT D. SACK,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 MING SUO,
14 Petitioner,
15
16 v. 19-1340
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, NY.
24
25 FOR RESPONDENT: Joseph H. Hunt, Assistant
26 Attorney General; Jonathan A.
27 Robbins, Sherease Pratt, Senior
28 Litigation Counsel, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
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
4 is DENIED.
5 Petitioner Ming Suo, a native and citizen of the People’s
6 Republic of China, seeks review of an April 8, 2019, decision
7 of the BIA affirming a November 20, 2017, decision of an
8 Immigration Judge (“IJ”) denying Suo’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Ming Suo, No. A206
11 565 581 (B.I.A. Apr. 8, 2019), aff’g No. A206 565 581 (Immig.
12 Ct. N.Y. City Nov. 20, 2017). We assume the parties’
13 familiarity with the underlying facts and procedural history.
14 Under the circumstances, we have considered both the IJ’s
15 and the BIA’s opinions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528
17 (2d Cir. 2006). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
19 Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
20 “Considering the totality of the circumstances, and all
21 relevant factors, a trier of fact may base a credibility
22 determination on the demeanor, candor, or responsiveness of
2
1 the applicant or witness, . . . the consistency between the
2 applicant’s or witness’s written and oral statements . . . ,
3 the internal consistency of each such statement, [and] the
4 consistency of such statements with other evidence of record
5 . . . without regard to whether an inconsistency, inaccuracy,
6 or falsehood goes to the heart of the applicant’s claim.”
7 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
8 credibility determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder
10 could make such an adverse credibility ruling.” Xiu Xia Lin
11 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
12 Gao, 891 F.3d at 76. Substantial evidence supports the
13 agency’s determination that Suo was not credible as to his
14 claim that police in China had detained and beat him for
15 practicing Falun Gong and that they had looked for him after
16 he left the country.
17 The agency reasonably relied in part on Suo’s demeanor,
18 noting that he was hesitant and evasive when testifying about
19 the circumstances surrounding his arrest and certain details
20 of his detention on cross-examination. See 8 U.S.C.
21 § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 81 n.1
22 (2d Cir. 2005). The demeanor finding is supported by the
3
1 record.
2 The demeanor finding and the overall credibility
3 determination are bolstered by record inconsistencies. See
4 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d
5 Cir. 2006). The agency reasonably relied on Suo’s
6 inconsistent statements between his asylum interview and
7 testimony in describing his cell, food, and interrogators in
8 detention. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also
9 Diallo v. Gonzales, 445 F.3d 624, 632 (2d Cir. 2006)
10 (concluding that “asylum . . . interviews do not call for
11 special scrutiny, as airport interviews do” and finding
12 reliable for credibility purposes interview records that
13 “contain[] a meaningful, clear, and reliable summary of the
14 statements made by [petitioner]” (internal quotation marks
15 omitted)). Further, Suo’s evidence was inconsistent
16 regarding whether police had looked for him after his
17 departure from China given his failure to make such an
18 assertion in his direct testimony when he would “reasonably
19 have been expected to disclose” that information under the
20 circumstances, his mother’s omission of this information from
21 her letter, and his changing explanation for his mother’s
22 failure to corroborate that assertion. Hong Fei Gao, 891
4
1 F.3d at 79; see also 8 U.S.C. § 1158(b)(1)(B)(iii).
2 Having questioned Suo’s credibility, the agency
3 reasonably relied further on his failure to rehabilitate his
4 testimony with reliable corroborating evidence. “An
5 applicant’s failure to corroborate his or her testimony may
6 bear on credibility, because the absence of corroboration in
7 general makes an applicant unable to rehabilitate testimony
8 that has already been called into question.” Biao Yang v.
9 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency
10 reasonably declined to credit letters from Suo’s mother and
11 friend because the letters were unsworn and neither author
12 was available for cross-examination. See Y.C. v. Holder, 741
13 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the
14 agency’s evaluation of the weight to be afforded an
15 applicant’s documentary evidence.”); see also In re H-L-H- &
16 Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding that
17 letters from alien’s friends and family were insufficient to
18 provide substantial support for alien’s claims because they
19 were from interested witnesses not subject to cross-
20 examination), overruled on other grounds by Hui Lin Huang v.
21 Holder, 677 F.3d 130, 133–38 (2d Cir. 2012). Further, Suo
22 did not submit any objective evidence of his alleged external
5
1 injuries or his parents’ payment of a fine. And, although
2 Suo’s cousin testified that he and Suo practice Falun Gong
3 together in the United States, his cousin could not
4 corroborate Suo’s experiences in China and could not identify
5 any of the individuals other than Suo in the photographs of
6 Falun Gong events in the record.
7 Given the demeanor, inconsistency, and corroboration
8 findings, the agency’s adverse credibility determination is
9 supported by substantial evidence. See 8 U.S.C.
10 § 1158(b)(1)(B)(iii). That determination was dispositive of
11 asylum, withholding of removal, and CAT relief because all
12 three claims were based on the same factual predicate. See
13 Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
14 For the foregoing reasons, the petition for review is
15 DENIED. All pending motions and applications are DENIED and
16 stays VACATED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe,
19 Clerk of Court
6