Dong v. Garland ( 2023 )

22-6074
Dong v. Garland
BIA
Schoppert, IJ
A206 303 859
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
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 4th day of December, two thousand
4 twenty-three.
5
6 PRESENT:
7 GERARD E. LYNCH,
8 JOSEPH F. BIANCO,
9 BETH ROBINSON,
10 Circuit Judges.
11 _____________________________________
12
13 ZHU XIAN DONG,
14 Petitioner,
15
16 v. 22-6074
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Richard Tarzia, Esq., Belle Mead, NJ.
1 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant
2 Attorney General; Anthony P. Nicastro,
3 Assistant Director; Sherease Pratt, Senior
4 Litigation Counsel, Office of Immigration
5 Litigation, United States Department of
6 Justice, Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Zhu Xian Dong, a native and citizen of the People’s Republic of
11 China, seeks review of a February 8, 2022 decision of the BIA, affirming a
12 November 28, 2018, decision of an Immigration Judge (“IJ”), which denied her
13 application for asylum, withholding of removal, and relief under the Convention
14 Against Torture (“CAT”). In re Zhu Xian Dong, No. A206 303 859 (B.I.A. Feb. 8,
15 2022), aff’g No. A206 303 859 (Immig. Ct. N.Y. City Nov. 28, 2018). We assume the
16 parties’ familiarity with the underlying facts and procedural history.
17 We have considered both the IJ’s and the BIA’s opinions. See Wangchuck v.
18 Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review an adverse
19 credibility determination “under the substantial evidence standard.” Hong Fei
20 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he administrative findings of
21 fact are conclusive unless any reasonable adjudicator would be compelled to
2
1 conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
2 “Considering the totality of the circumstances, and all relevant factors, a
3 trier of fact may base a credibility determination on the demeanor, candor, or
4 responsiveness of the applicant or witness, the inherent plausibility of the
5 applicant’s or witness’s account, the consistency between the applicant’s or
6 witness’s written and oral statements . . . , the internal consistency of each such
7 statement, [and] the consistency of such statements with other evidence of record
8 . . . without regard to whether an inconsistency, inaccuracy, or falsehood goes to
9 the heart of the applicant’s claim, or any other relevant factor.” 8 U.S.C. §
10 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless, from
11 the totality of the circumstances, it is plain that no reasonable fact-finder could
12 make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
13 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76.
14 Substantial evidence supports the agency’s adverse credibility
15 determination. The agency reasonably relied on inconsistencies and false
16 statements that either undercut the basis of Dong’s asylum claim—that she only
17 had one child because she was forced to have an abortion—or demonstrated that
18 she had engaged in immigration fraud. Dong’s testimony that she only had one
3
1 child because she was forced to have an abortion in 1994 was undercut by
2 documentation of her divorce from her first husband, a visa petition that her
3 second husband filed on her behalf, and a birth certificate that listed Dong as the
4 birth mother for a female named Jianyi, all of which represented that she and her
5 first husband had a second child in 1993. Although Dong testified that Jianyi was
6 not her daughter, that explanation itself undercut her credibility by demonstrating
7 that she had falsified documents in order to engage in immigration fraud by
8 proffering that child as her own. The agency was not required to credit Dong’s
9 explanations for this inconsistency. Her testimony that she did not know
10 whether the birth certificate for that second child was real or fabricated was
11 undercut by her testimony that she and her second husband had paid someone to
12 obtain it because Jianyi desired to enter the United States. See Majidi v. Gonzales,
13 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer a plausible
14 explanation for his inconsistent statements to secure relief; he must demonstrate
15 that a reasonable fact-finder would be compelled to credit his testimony.”
16 (quotation marks omitted)). Her argument that the false statements were made
17 only in documents prepared by her husbands and in whose creation she was not
18 involved was not compelling because she testified that she was involved in
4
1 obtaining the false birth certificate. Further, a factfinder may rely on inconsistent
2 statements from witnesses in determining an applicant’s credibility. See 8 U.S.C.
3 § 1158(b)(1)(B)(iii); see also Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007)
4 (“Decisions as to . . . which of competing inferences to draw are entirely within the
5 province of the trier of fact.” (quotation marks omitted)).
6 Her claim was further undermined by the testimony and asylum application
7 of her first husband, whom she remarried after coming to the United States. Both
8 Dong and her husband testified that he knew about the abortion before he applied
9 for asylum in the United States, and her husband testified that he applied for
10 asylum on family planning grounds. However, he inexplicably had not included
11 the abortion in his application. Instead, the application reflected an entirely
12 different basis for his asylum claim, with no mention of the family planning policy
13 whatsoever.
14 Finally, having questioned Dong’s credibility, the agency reasonably relied
15 further on her lack of reliable corroboration. “An applicant’s failure to
16 corroborate his or her testimony may bear on credibility, because the absence of
17 corroboration in general makes an applicant unable to rehabilitate testimony that
18 has already been called into question.” Biao Yang v. Gonzales, 496 F.3d 268, 273
5
1 (2d Cir. 2007). The IJ reasonably afforded limited weight to unsworn letters from
2 Dong’s brother and mother because they were prepared by interested parties who
3 were not available for cross-examination. See Likai Gao v. Barr, 968 F.3d 137, 149
4 (2d Cir. 2020) (holding that an “IJ acted within her discretion in according . . . little
5 weight [to letters from applicant’s wife and friend] because the declarants
6 (particularly [the] wife) were interested parties and neither was available for cross-
7 examination”); Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the
8 agency’s determination of the weight afforded to an alien’s documentary
9 evidence.”). And, as noted above, Dong’s husband (first and current), whom she
10 called as a witness, was reasonably determined by the IJ not to be credible. See
11 Certified Administrative Record, at 36.
12 The inconsistencies and lack of reliable corroboration provide substantial
13 evidence for the adverse credibility determination. See 8 U.S.C.
14 § 1158(b)(1)(B)(iii); Likai Gao, 968 F.3d at 145 n.8 (“[E]ven a single inconsistency
15 might preclude an alien from showing that an IJ was compelled to find him
16 credible. Multiple inconsistencies would so preclude even more forcefully.”); Biao
17 Yang, 496 F.3d at 273. The adverse credibility determination is dispositive
18 because Dong’s claims for asylum, withholding of removal, and CAT relief were
6
1 all based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57
2 (2d Cir. 2006). 1
3 For the foregoing reasons, the petition for review is DENIED. All pending
4 motions and applications are DENIED and stays VACATED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court
1
In any event, Dong has waived review of her claim for CAT relief because she has not raised it on
appeal. Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008) (issues not raised on appeal are waived)
7