Eun Jee Lee v. Lynch

13-4762
Lee v. Lynch
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the,
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
24th day of August, two thousand fifteen.
PRESENT:
JOSÉ A. CABRANES,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
EUN JEE LEE,
Petitioner,
v. 13-4762-ag
LORETTA E. LYNCH, United States Attorney
General,
Respondent.
_____________________________________
FOR PETITIONER: EVAN GOLDBERG, Law Office of Theodore Davis,
New York, New York.
FOR RESPONDENT: KATHERINE DEANGELIS, trial attorney (Stuart F.
Delery, Assistant Attorney General; Greg D. Mack,
Senior Litigation Counsel; Richard Zanfardino, Trial
Attorney, on the brief) Office of Immigration
Litigation, United States Department of Justice,
Washington D.C.
1
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
the petition for review is DENIED.
Eun Jee Lee, an alleged native and citizen of North Korea, seeks review of a November 25,
2013 decision of the BIA affirming the April 19, 2012 decision of an Immigration Judge (“IJ”),
denying her application for asylum, withholding of removal, and relief pursuant to the Convention
Against Torture (“CAT”). In re Eun Jee Lee, No. A087 637 035 (B.I.A. Nov. 25, 2013), aff’g No. A087
637 035 (Immig. Ct. N.Y.C. Apr. 19, 2012). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
When the BIA briefly affirms the decision of an IJ and, in doing so, “adopt[s] the IJ’s
reasoning,” we review the IJ’s and the BIA’s decisions together. Secaida–Rosales v. INS, 331 F.3d 297,
305 (2d Cir. 2003). The applicable standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513-14 (2d Cir. 2009).
For asylum applications like Lee’s, governed by the REAL ID Act of 2005, the agency may,
“[c]onsidering the totality of the circumstances,” base a credibility determination on the asylum
applicant’s demeanor, the plausibility of her account, inconsistencies in her statements, and other
record evidence “without regard to whether” they go “to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless, from the
totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse
credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
Here, substantial evidence supports the agency’s adverse credibility determination. As an
initial matter, the IJ reasonably based her adverse credibility determination in part on her
observation of Lee’s demeanor, finding that she was unresponsive and hesitant, especially when
confronted with inconsistencies in the record. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Shu Wen Sun v.
BIA, 510 F.3d 377, 381 (2d Cir. 2007). Those findings are supported by the record.
The IJ’s demeanor findings and the adverse credibility determination as a whole are further
supported by inconsistencies and implausibilities in the record. See Li Hua Lin v. U.S. Dep’t of Justice,
453 F.3d 99, 109 (2d Cir. 2006) (“We can be still more confident in our review of observations
about an applicant’s demeanor where, as here, they are supported by specific examples of
inconsistent testimony.”). The agency reasonably found inconsistencies between statements made
by Lee on numerous topics, including whether she served in the military, what year her sister left
North Korea, whether police in China attempted to arrest her, and whether she was present when
her church in China was raided. The agency was not required to credit her explanations for these
inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). The agency also reasonably
found implausibilities in Lee’s testimony regarding how she discovered her underground church in
China, how she was able to attend that church on a weekly basis, and why she kept a photograph of
2
herself in a North Korean army uniform. See Wensheng Yan v. Mukasey, 509 F.3d 63, 66-67 (2d Cir.
2007); Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007).
In making the adverse credibility determination, the lack of certain details in Lee’s asylum
application may not rise to the level of omissions amounting to inconsistencies, specifically, the
number of times she was beaten and the location of her forced labor. Compare C.A.R. 470 (asylum
application stating Lee and family “were often assaulted” and that Lee was “taken away to perform
forced labor . . . sometimes for many consecutive months”), with id. at 172–75 (Lee’s testimony that
she was beaten ten times forced to labor on a farm). A similar conclusion might be reached
regarding Lee’s testimony as to when she left China. Nevertheless, the numerous inconsistencies and
implausibilities identified above are supported by the record and allow us to “state with confidence
that the IJ would adhere to his decision if we were to remand.” Xiao Ji Chen v. U.S. Dep’t of Justice,
434 F.3d 144, 158 (2d Cir. 2006); see Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.
2005) (vacating and remanding where, without erroneous findings, “evidence supporting [the IJ’s]
findings is not so overwhelming that it is clear she would reach the same results on remand”).
Accordingly, no remand to the agency for reconsideration of its credibility determination without
the few overstated findings is necessary.
Having called Lee’s credibility into question, the agency reasonably relied further on her
failure to corroborate her claims. An applicant’s failure to corroborate her testimony may bear on
credibility, either because the absence of particular corroborating evidence is viewed as suspicious,
or because the absence of corroboration makes an applicant unable to rehabilitate testimony that has
already been called into question. Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The
agency reasonably found that, although Lee could not be expected to authenticate her North Korean
identification card, that unauthenticated identification card alone was insufficient to rehabilitate her
non-credible testimony.
Given these demeanor, omission, inconsistency, and corroboration findings, substantial
evidence supports the agency’s adverse credibility determination. See Xiu Xia Lin, 534 F.3d at 167.
This finding is dispositive of Lee’s application for asylum, withholding of removal, and relief
pursuant to the CAT, insofar as those claims are predicated on her fear of being repatriated to
North Korea and her fear of persecution for having attended an unregistered church in China. See,
e.g., Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
Furthermore, contrary to Lee’s contention, the IJ did not err in finding that she failed to
demonstrate an objectively reasonable fear of persecution on account of her practice of Christianity
in the United States, because Lee did not submit any evidence that Chinese officials are aware of, or
likely to become aware of, her Christian activities. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143
(2d Cir. 2008) (“Put simply, to establish a well-founded fear of persecution in the absence of any
evidence of past persecution, an alien must make some showing that authorities in his country of
nationality are either aware of his activities or likely to become aware of his activities.”).
3
Because the agency’s adverse credibility determination and burden finding are dispositive of
all forms of relief, we do not reach the agency’s alternative basis for denying asylum, namely Lee’s
failure to timely file her asylum application.
For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4