Dan v. Barr

17-789
Dan v. Barr
BIA
Loprest, IJ
A205 262 532
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 19th day of December, two thousand nineteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 RICHARD C. WESLEY,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _____________________________________
13
14 WEN DAN, AKA DAN WENG,
15 Petitioner,
16
17 v. 17-789
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Richard Tarzia, Belle Mead, NJ.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant
27 Attorney General; Russell J.E.
28 Verby, Senior Litigation Counsel;
29 John D. Williams, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of
32 Justice, 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 Wen Dan, a native and citizen of the People’s
6 Republic of China, seeks review of a February 27, 2017,
7 decision of the BIA affirming an April 21, 2016, decision of
8 an Immigration Judge (“IJ”) denying asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Wen Dan, No. A205 262 532 (B.I.A. Feb. 27,
11 2017), aff’g No. A205 262 532 (Immig. Ct. N.Y. City Apr. 21,
12 2016). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the IJ’s decision as modified by the BIA. See Xue Hong Yang
16 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
17 The applicable standards of review are well established. See
18 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
19 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 inherent plausibility of the
2 applicant’s or witness’s account, the consistency between the
3 applicant’s or witness’s written and oral statements . . . ,
4 [and] the internal consistency of each such statement . . .
5 without regard to whether an inconsistency, inaccuracy, or
6 falsehood goes to the heart of the applicant’s claim.”
7 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534
8 F.3d 162, 163-64 (2d Cir. 2008). Substantial evidence
9 supports the agency’s determination that Dan was not credible
10 as to her claim that police detained and beat her for
11 attending an unregistered church in China.
12 The agency reasonably relied in part on Dan’s evasiveness
13 and lack of responsiveness when asked to deviate from her
14 testimony on direct examination, which gave the impression
15 that she was testifying from a script. See 8 U.S.C.
16 § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 81 n.1
17 (2d Cir. 2005) (recognizing that particular deference is
18 given to the trier of fact’s assessment of demeanor). That
19 finding is supported by the record, which reflects Dan’s
20 difficulty answering questions directly on cross-examination.
21 The demeanor finding and the overall credibility
22 determination are bolstered by record inconsistencies. See
3
1 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d
2 Cir. 2006). The agency reasonably found that Dan made
3 inconsistent statements regarding whether police raided her
4 church before or after the service had begun and whether her
5 family attended church with her. See 8 U.S.C.
6 § 1158(b)(1)(B)(iii). Dan did not provide compelling
7 explanations for these inconsistencies. See Majidi, 430 F.3d
8 at 80 (“A petitioner must do more than offer a plausible
9 explanation for h[er] inconsistent statements to secure
10 relief; [s]he must demonstrate that a reasonable fact-finder
11 would be compelled to credit h[er] testimony.” (internal
12 quotation marks omitted)).
13 The agency also did not err in noting that Dan’s mother’s
14 letter omitted that she attended church with Dan,
15 particularly given that the letter discusses Dan’s two visits
16 to church in China. See Hong Fei Gao, 891 F.3d at 82 (finding
17 no error in agency’s reliance on omission from applicant’s
18 mother’s letter of applicant’s beating by police because
19 letter “discusse[d] other post-arrest events”); see also Xiu
20 Xia Lin, 534 F.3d at 166-67 & n.3. Furthermore, the agency
21 did not err in finding Dan’s explanation for her mother’s
22 omission implausible. See Wensheng Yan v. Mukasey, 509 F.3d
4
1 63, 66-68 (2d Cir. 2007) (recognizing that adverse
2 credibility determination may be based on inherent
3 implausibility if the “finding is tethered to record
4 evidence” or based on common sense). Although Dan claimed
5 that her mother did not attend church regularly and did not
6 know that she was attending an underground church, Dan’s
7 mother’s letter discussed Dan’s equally infrequent church
8 attendance and acknowledged that attendance at the church was
9 considered unlawful.
10 Given the demeanor, inconsistency, and implausibility
11 findings, which call into question Dan’s practice of
12 Christianity, her alleged arrest, and her credibility as a
13 whole, the agency’s adverse credibility determination is
14 supported by substantial evidence. See 8 U.S.C.
15 § 1158(b)(1)(B)(iii). That determination is dispositive of
16 asylum, withholding of removal, and CAT relief because all
17 three claims are based on the same factual predicate.1 See
18 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
19
1 Because the IJ denied all relief on credibility grounds,
Dan’s challenge to the adverse credibility determination
necessarily included a challenge to the denial of withholding
of removal and CAT relief.
5
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe
5 Clerk of Court
6