Guiyu Jin v. Sessions

16-1
Jin v. Sessions
BIA
Schoppert, IJ
A200 168 536
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 17th day of July, two thousand seventeen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 GUIYU JIN, AKA GUIOK KIM,
14 Petitioner,
15
16 v. 16-1
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Wei Gu, Whitestone, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Keith I.
27 McManus, Assistant Director; Scott
28 M. Marconda, Trial Attorney, Office
29 of 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 is
4 DENIED.
5 Petitioner Guiyu Jin, an alleged native of the People’s
6 Republic of China and citizen of South Korea, seeks review of
7 a December 4, 2015, decision of the BIA, affirming a June 18,
8 2014, decision of an Immigration Judge (“IJ”) denying Jin’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”), and concluding
11 that she knowingly made a frivolous application for asylum. In
12 re Guiyu Jin, No. A200 168 536 (B.I.A. Dec. 4, 2015), aff’g No.
13 A200 168 536 (Immig. Ct. N.Y. City June 18, 2014). We assume
14 the parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 Under the circumstances of this case, we have reviewed both
17 the IJ’s and the BIA’s opinions “for the sake of completeness.”
18 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
19 2006). The applicable standards of review are well
20 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
21 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
22
23
2
1 I. Adverse Credibility Determination
2 Because a frivolousness finding is only “effective as of
3 the date of a final determination,” 8 U.S.C. § 1158(d)(6), we
4 first consider the denial of relief on the merits. For asylum
5 applications like Jin’s, governed by the REAL ID Act, the agency
6 may, “[c]onsidering the totality of the circumstances,” base
7 a credibility finding on “the inherent plausibility of the
8 applicant’s” account and on inconsistencies in her statements
9 and evidence, “without regard to whether” those inconsistencies
10 go “to the heart of the applicant’s claim.” 8 U.S.C.
11 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
12 defer . . . to an IJ’s credibility determination unless, from
13 the totality of the circumstances, it is plain that no
14 reasonable fact-finder could make such an adverse credibility
15 ruling.” Xiu Xia Lin, 534 F.3d at 167. Substantial evidence
16 supports the adverse credibility determination.
17 The agency reasonably relied on inconsistencies between
18 Jin’s testimony and the Government’s evidence concerning Jin’s
19 date of entry to the United States. See 8 U.S.C.
20 § 1158(b)(1)(B)(iii). Jin maintained throughout her
21 testimony, and wrote in each application, that she entered the
22 United States in August 2010, through the Mexico-California
23 border and that she never entered before that date. The
3
1 Government’s records, however, reflect that an individual named
2 “Guiok Kim,” whose birthdate and fingerprints matched Jin’s,
3 had twice previously gained entry to the United States in
4 November 2006 and November 2007 using a South Korean passport
5 and a visa obtained in South Korea. There was no record of Guiok
6 Kim departing the United States after the 2007 entry. When
7 confronted with this evidence, Jin did not proffer an
8 explanation. Instead, she maintained that her first and only
9 entry occurred in August 2010. The agency reasonably concluded
10 that this discrepancy “cast serious doubt” on Jin’s entire
11 claim, particularly as her 2013 asylum application listed Guiok
12 Kim as a name she had used previously. This inconsistency, even
13 standing alone, supports the adverse credibility determination
14 because it calls into question Jin’s identity and completely
15 undermines her claim that she was arrested in China in 2010 given
16 the Government’s evidence placing her in the United States at
17 that time. Cf. Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d
18 289, 295 (2d Cir. 2006) (“[A] material inconsistency in an
19 aspect of [an applicant’s] story that served as an example of
20 the very persecution from which he sought asylum . . . afforded
21 substantial evidence to support the adverse credibility
22 finding.”).
4
1 Nor does Jin attempt to explain this discrepancy in her
2 brief. Instead, she faults the agency for crediting the
3 Government’s evidence over hers, which consisted of letters
4 from family in China, a Public Security Penalty Decision dated
5 May 2010 issued to Jin for renting a room to North Korean
6 refugees, and a medical record for her hospitalization in China
7 following the alleged May 2010 beating. Jin’s argument is
8 unavailing. “Decisions as to . . . which of competing
9 inferences to draw are entirely within the province of the trier
10 of fact.” Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007)
11 (quoting Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 44 (2d
12 Cir. 2000)); see also Xiao Ji Chen v. U.S. Dep’t of Justice,
13 471 F.3d 315, 342 (2d Cir. 2006) (observing that this Court
14 generally defers to the agency’s evaluation of documentary
15 evidence). Accordingly, because the agency’s finding is
16 “tethered to the evidentiary record,” we accord it deference.
17 Siewe, 480 F.3d at 168-69.
18 The agency also reasonably found parts of Jin’s testimony
19 concerning how she came to procure a massage license in Florida
20 to be implausible. “[I]n assessing the credibility of an
21 asylum applicant’s testimony, an IJ is entitled to consider
22 whether the applicant’s story is inherently implausible.”
23 Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007); see
5
1 also 8 U.S.C. § 1158(b)(1)(B)(iii). Such a finding cannot be
2 based on “bald speculation or caprice.” Zhou Yun Zhang v. U.S.
3 INS, 386 F.3d 66, 74 (2d Cir. 2004), overruled on other grounds
4 by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.
5 2007). But one that is based on “speculation that inheres in
6 inference is not ‘bald’ if the inference is made available to
7 the factfinder by record facts, or even a single fact, viewed
8 in the light of common sense and ordinary experience.” Siewe,
9 480 F.3d at 168-69. Common sense supports the IJ’s inference:
10 it strains credulity that Jin, who testified that she could not
11 read or write in English, was able to obtain a massage license
12 in Florida by attending a three-month class conducted in English
13 merely by using a dictionary, particularly given her testimony
14 that her lack of English prevented her from recalling the name
15 of the school.
16 Given the inconsistencies regarding identity and location
17 at the time of the alleged persecution, and the implausibility
18 of Jin’s claim to be a licensed masseuse, it cannot be said “that
19 no reasonable fact-finder could make such a credibility
20 ruling.” Xiu Xia Lin, 534 F.3d at 167. Because asylum,
21 withholding of removal, and CAT relief were all based on the
22 same factual predicate, the adverse credibility determination
6
1 is dispositive. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
2 2006).
3 II. Frivolousness Finding
4 “A person who makes an application for asylum determined
5 to be ‘frivolous,’ or deliberately and materially false, is
6 subject to a grave penalty: permanent ineligibility for most
7 forms of relief under the immigration laws.” Mei Juan Zheng
8 v. Mukasey, 514 F.3d 176, 178 (2d Cir. 2008); see 8 U.S.C.
9 § 1158(d)(6).
10 We find no basis to disturb the agency’s conclusion that
11 Jin knowingly submitted a frivolous application. The agency
12 employed all four procedural safeguards: Jin had notice of the
13 consequences of filing a frivolous application because there
14 was a written warning immediately above her signature on her
15 application, see Gade Niang v. Holder, 762 F.3d 251, 254 (2d
16 Cir. 2014); the agency rendered an explicit finding that Jin
17 knowingly filed a frivolous application; the agency’s finding
18 is supported by the record, which, as discussed above,
19 establishes that Jin entered the United States in 2006 and 2007,
20 before the date stated in her application, and the lack of
21 departure information supports a conclusion that she was in the
22 United States at the time of the alleged persecution in China;
23 and Jin was given an opportunity to account for the discrepancy,
7
1 but instead chose to deny that she previously entered the United
2 States under a different name. See In re Y-L-, 24 I. & N. Dec.
3 151, 155 (B.I.A. 2007) (discussing 8 C.F.R. § 1208.20).
4 For the foregoing reasons, the petition for review is
5 DENIED.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8