Sun v. Garland ( 2023 )

21-6130
Sun v. Garland
BIA
Poctzer, IJ
A209 936 752
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 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 the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 16th day of August, two thousand twenty-three.
4
5 PRESENT:
6 PIERRE N. LEVAL,
7 RICHARD J. SULLIVAN,
8 SARAH A. L. MERRIAM,
9 Circuit Judges.
10 _____________________________________
11
12 LIN JUAN SUN,
13 Petitioner,
14
15 v. No. 21-6130
16
17 MERRICK B. GARLAND, UNITED STATES
18 ATTORNEY GENERAL,
19 Respondent.
20 _____________________________________
21
22
1 FOR PETITIONER: Richard Tarzia, Law Office of Richard Tarzia,
2 Belle Mead, NJ.
3
4 FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney
5 General; Holly M. Smith, Assistant Director;
6 Nehal H. Kamani, Trial Attorney, Office of
7 Immigration Litigation, United States
8 Department of Justice, Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a Board of
10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,
11 AND DECREED that the petition for review is DENIED.
12 Petitioner Lin Juan Sun, a native and citizen of the People’s Republic of
13 China, seeks review of the BIA’s decision affirming a decision of an Immigration
14 Judge (“IJ”) denying her application for asylum, withholding of removal, and
15 relief under the Convention Against Torture (“CAT”). In re Lin Juan Sun, No.
16 A209 936 752 (B.I.A. Feb. 8, 2021), aff’g No. A209 936 752 (Immigr. Ct. N.Y.C. Apr.
17 13, 2018). We assume the parties’ familiarity with the underlying facts and
18 procedural history.
19 As an initial matter, Sun challenges the agency’s jurisdiction over her
20 removal proceedings given the defects in her notice to appear (“NTA”).
21 Specifically, Sun argues that her NTA did not vest jurisdiction with the
22 Immigration Court because it omitted the date and time of her hearing. But we
2
1 have already held that such an NTA is sufficient to vest jurisdiction in the
2 Immigration Court where, as here, a notice of hearing with the missing
3 information is later sent to the non-citizen and the non-citizen appears at the
4 hearing. See Banegas Gomez v. Barr, 922 F.3d 101, 110–12 (2d Cir. 2019); see also
5 Chery v. Garland, 16 F.4th 980, 986–87 (2d Cir. 2021).
6 Turning to the merits, we have reviewed both the IJ’s and the BIA’s
7 decisions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
8 F.3d 524, 528 (2d Cir. 2006). We review the agency’s factual findings – including
9 its adverse-credibility determinations – for substantial evidence, “which requires
10 that they be supported by reasonable, substantial[,] and probative evidence in the
11 record when considered as a whole.” Kone v. Holder, 596 F.3d 141, 146 (2d Cir.
12 2010) (internal quotation marks omitted). We review questions of law de novo.
13 See Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
14 The IJ may, “[c]onsidering the totality of the circumstances, . . . base a
15 credibility determination on . . . the consistency between the applicant’s . . . written
16 and oral statements[,] . . . the internal consistency of each such statement, the
17 consistency of such statements with other evidence of record[,] . . . and any
18 inaccuracies or falsehoods in such statements, without regard to whether an
19 inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim,
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1 or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an
2 IJ’s credibility determination unless, from the totality of the circumstances, it is
3 plain that no reasonable fact-finder could make such an adverse[-]credibility
4 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
5 Gao, 891 F.3d at 76.
6 The inconsistencies between Sun’s testimony at her removal hearing and her
7 statements at her credible-fear interview, as well as inconsistencies within her
8 hearing testimony itself, support the agency’s adverse-credibility determination.
9 When asked at her hearing whether she had attended church while she was in
10 hiding in the countryside, Sun testified that she had. She had earlier testified that
11 she had last attended church on the day of the May 2013 police raid that forced her
12 into hiding. In addition to that inconsistency, Sun also gave inconsistent
13 testimony about when she became a Christian and how often she had attended
14 church services. Sun testified at her hearing that she became a Christian in March
15 2013, and attended church six times; by contrast, she stated at her earlier interview
16 that she became a Christian a year later in March 2014, and attended church only
17 four times. Taken together, these inconsistencies sufficiently support the IJ’s
18 adverse-credibility determination.
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1 Sun’s arguments to the contrary are unavailing. First, the agency did not
2 err in relying on statements made during Sun’s credible-fear interview. The IJ
3 analyzed the factors set forth in Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d
4 Cir. 2004), and reasonably concluded that the interview record bears the hallmarks
5 of reliability: it was conducted with an interpreter; it was memorialized in a
6 typewritten form that appears to provide a verbatim account of Sun’s answers; the
7 questions posed were designed to elicit details of her claims; and Sun’s responses
8 indicated that she understood the questions and was not reluctant to answer. See
9 Ramsameachire, 357 F.3d at 180. Second, while Sun argues that the inconsistencies
10 are trivial and cannot support an adverse-credibility determination, an IJ “may
11 rely on any inconsistency . . . in making an adverse[-]credibility determination as
12 long as the totality of the circumstances establishes that an asylum applicant is not
13 credible.” Xiu Xia Lin, 534 F.3d at 167 (internal quotation marks omitted). Third,
14 Sun’s contention that the agency should have given little weight to her interview
15 statements because she was nervous and confused is likewise unpersuasive, since
16 such excuses do “not automatically prevent the IJ or BIA from relying on
17 statements in such interviews when making adverse[-]credibility determinations.”
18 Ming Zhang v. Holder, 585 F.3d 715, 722 (2d Cir. 2009) (internal quotation marks
19 and alterations omitted). Fourth, and finally, the fact that Sun elected to proceed
5
1 with the interview without her counsel present does not preclude reliance on her
2 statements given the other indicia of reliability. See Ramsameachire, 357 F.3d at
3 179–80.
4 Absent a credible claim of past persecution as a Christian, Sun had the
5 burden to establish a well-founded fear of future persecution on account of her
6 practice of Christianity in the United States. See 8 C.F.R. § 1208.13(b). This
7 required Sun to demonstrate that her fear was “objectively reasonable.”
8 Ramsameachire, 357 F.3d at 178. “Objective reasonableness entails a showing that
9 a reasonable person in the petitioner’s circumstances would fear persecution if
10 returned to h[er] native country.” Jian Xing Huang v. U.S. I.N.S., 421 F.3d 125, 128
11 (2d Cir. 2005). A fear may be objectively reasonable “even if there is only a slight,
12 though discernible, chance of persecution.” Diallo v. I.N.S., 232 F.3d 279, 284 (2d
13 Cir. 2000). But a fear is not objectively reasonable if it lacks “solid support” in the
14 record and is merely “speculative at best.” Jian Xing Huang, 421 F.3d at 129.
15 To establish a well-founded fear of future persecution, the applicant can
16 show either a reasonable possibility that she would be singled out for persecution
17 or a pattern or practice of persecution of a group of persons similarly situated to
18 the applicant on account of a protected ground. See 8 C.F.R. § 1208.13(b)(2)(iii).
19 An applicant who fears persecution based on activities in the United States must
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1 make some showing that the government in her home country is aware, or that
2 there is a reasonable possibility the government will become aware, of her
3 activities and will persecute her. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143
4 (2d Cir. 2008). “A determination of what will occur in the future and the degree
5 of likelihood of the occurrence has been regularly regarded as fact-finding subject
6 to only clear error review.” Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir.
7 2012).
8 Here, the agency reasonably determined that Sun did not meet her burden
9 to show a well-founded fear of future persecution. Although Sun stated that she
10 would attend church in China, the agency reasonably found her assertion
11 speculative because she had stopped practicing Christianity in China for two years
12 before coming to the United States. See Jian Xing Huang, 421 F.3d at 129.
13 Additionally, the country conditions evidence in the record did not establish a
14 pattern or practice of persecution of similarly situated individuals. The 2016 U.S.
15 State Department International Religious Freedom Report for China states that
16 there are 70 million practicing Christians in China, and while it discusses the
17 Chinese government’s efforts to limit Christian religious practice, it also shows
18 that persecution varies by region and does not mention any persecution of
19 Christians in Sun’s native province of Fujian. See Jian Liang v. Garland, 10 F.4th
71 106, 117 (2d Cir. 2021) (finding no error in denial of claim based on practice of
2 Christianity in the United States where petitioner did not have evidence that
3 “speaks to persecution in . . . Fujian”); Jian Hui Shao v. Mukasey, 546 F.3d 138, 142,
4 149, 165 (2d Cir. 2008) (finding no error in the agency’s requirement that an
5 applicant demonstrate a well-founded fear of persecution specific to his or her
6 local area when persecutory acts vary according to locality). Because nothing in
7 the record suggests that the IJ failed to consider all of Sun’s evidence, we affirm its
8 finding that Sun lacked a well-founded fear of future persecution. See Xiao Ji Chen
9 v. U.S. Dep’t. of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006) (“[W]e presume that an
10 IJ has taken into account all of the evidence before him [or her], unless the record
11 compellingly suggests otherwise.”).
12 For the foregoing reasons, the petition for review is DENIED. All pending
13 motions and applications are DENIED and stays VACATED.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk of Court
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