Shi v. Sessions

15-2142
Shi v. Sessions
BIA
Poczter, IJ
A205 442 530
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 10th day of March, two thousand seventeen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 GUIXIN SHI,
14 Petitioner,
15
16 v. 15-2142
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; Cindy S.
27 Ferrier, Assistant Director;
28 Timothy G. Hayes, Trial Attorney,
29 Office of Immigration Litigation,
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jefferson B. Sessions, III, is
automatically substituted for former Attorney General Loretta E. Lynch
1 United States Department of Justice,
2 Washington, DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review is
7 DENIED.
8 Petitioner Guixin Shi, a native and citizen of the People’s
9 Republic of China, seeks review of a June 19, 2015, decision
10 of the BIA affirming a October 28, 2013, decision of an
11 Immigration Judge (“IJ”) denying Shi’s application for asylum,
12 withholding of removal, and relief under the Convention Against
13 Torture (“CAT”). In re Guixin Shi, No. A205 442 530 (B.I.A.
14 June 19, 2015), aff’g No. A205 442 530 (Immig. Ct. N.Y. City
15 Oct. 28, 2013). We assume the parties’ familiarity with the
16 underlying facts and procedural history in this case.
17 We have considered both the IJ’s and the BIA’s opinions “for
18 the sake of completeness.” Wangchuck v. Dep’t of Homeland
19 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
20 standards of review are well established. See 8 U.S.C.
21 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
22 Cir. 2009).
23 The agency may, in light of “the totality of the
24 circumstances,” base an adverse credibility determination on
2
1 the plausibility of an applicant’s account. When reviewing for
2 substantial evidence, “[w]e defer . . . to an IJ’s credibility
3 determination unless, from the totality of the circumstances,
4 it is plain that no reasonable fact-finder could make such an
5 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d
6 162, 167 (2d Cir. 2008).
7 The determination against Shi is sound. “[I]n assessing
8 the credibility of an asylum applicant’s testimony, an IJ is
9 entitled to consider whether the applicant’s story is
10 inherently implausible.” Wensheng Yan v. Mukasey, 509 F.3d 63,
11 66 (2d Cir. 2007). An implausibility finding cannot be based
12 on “bald speculation or caprice.” Zhou Yun Zhang v. INS, 386
13 F.3d 66, 74 (2d Cir. 2004), overruled on other grounds by Shi
14 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).
15 But an inference is not based on “speculation . . . if the
16 inference is made available to the factfinder by record facts,
17 or even a single fact, viewed in the light of common sense and
18 ordinary experience.” Siewe v. Gonzales, 480 F.3d 160, 168-69
19 (2d Cir. 2007). Shi alleged that a colleague suffered an injury
20 at a government-owned factory; Shi and others successfully
21 persuaded management to compensate the colleague; and later
22 that same day, police arrested, detained, and beat Shi. Common
3
1 sense supports the IJ’s incredulity: it is not likely that
2 factory management would capitulate to Shi’s demands and then
3 retaliate against her. Moreover, the IJ “developed the record
4 such that the reasons for [her] incredulity are evident.”
5 Wensheng Yan, 509 F.3d at 67. The Government attorney asked
6 Shi if the workers who helped collect donations were likewise
7 arrested (Shi did not know), and the IJ confirmed that if those
8 workers could openly solicit funds from their fellow workers,
9 they were not afraid of factory management.
10 Shi now offers three possible explanations for the factory
11 to have punished her after agreeing to her demands: the
12 government did not perceive her as a threat until she succeeded
13 in obtaining compensation for her injured friend; the
14 government wanted Shi to be an example to others; and factory
15 management took time to coordinate with the police. “[T]hese
16 available possibilities do not defeat a finding that the account
17 is implausible.” Ying Li v. BCIS, 529 F.3d 79, 83 (2d Cir.
18 2008); see also Wensheng Yan, 509 F.3d at 68 (“The fact that
19 there could conceivably be a scenario in which Yan’s behaviors
20 would be deemed plausible will not compel this Court to label
21 unreasonable an IJ’s finding of implausibility. . . .”). On
22 substantial evidence review, we do not “explain away the
4
1 improbabilities” identified by the agency. Zhou Yun Zhang, 386
2 F.3d at 74. Rather, we ask whether “any reasonable adjudicator
3 would be compelled to conclude” that the applicant testified
4 credibly. Ying Li, 529 F.3d at 80.
5 The implausibility of Shi’s testimony cast doubt on whether
6 the critical incident of alleged persecution occurred. Shi’s
7 applications for asylum, withholding of removal, and CAT relief
8 were based on the same factual predicate, and so the adverse
9 credibility determination was dispositive as to all three. See
10 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DENIED as moot. Any pending request for oral argument in
16 this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).
19 FOR THE COURT:
20 Catherine O=Hagan Wolfe, Clerk
5