Jian Ying Wu v. Sessions

16-1084
Wu v. Sessions
BIA
Segal, IJ
A200 283 647
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 23rd day of June, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 JIAN YING WU,
14 Petitioner,
15
16 v. 16-1084
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael Brown, New York, NY.
24
25 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
26 Attorney General; Stephen J. Flynn,
27 Assistant Director; Jeffrey R.
28 Meyer, Attorney, Office of
29 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 Jian Ying Wu, a native and citizen of the
6 People’s Republic of China, seeks review of a March 23, 2016,
7 decision of the BIA, affirming a July 3, 2014, decision of an
8 Immigration Judge (“IJ”) denying Wu’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Jian Ying Wu, No. A200 283 647 (B.I.A.
11 A.K. Marsh. 23, 2016), aff’g No. A200 283 647 (Immig. Ct. N.Y. City
12 July 3, 2014). 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 both
15 the IJ’s and the BIA’s opinions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
19 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
20 For asylum applications like Wu’s, governed by the REAL ID
21 Act, the agency may, “[c]onsidering the totality of the
2
1 circumstances,” base a credibility finding on inconsistencies
2 in an applicant’s and her witness’s statements, “without regard
3 to whether” those inconsistencies go “to the heart of the
4 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
5 Lin, 534 F.3d at 163-64, 167. “We defer . . . to an IJ’s
6 credibility determination unless, from the totality of the
7 circumstances, it is plain that no reasonable fact-finder could
8 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
9 at 167. Substantial evidence supports the adverse credibility
10 determination in this case.
11 Wu testified that, on one occasion in 2014, she and her
12 husband visited her witness Ye Qing’s home and that she met
13 Qing’s wife. This conflicted both with Wu’s husband’s
14 testimony (he denied meeting Qing’s wife) and Qing’s testimony
15 (he and his wife divorced in 2001 and he lived only with his
16 child). The agency reasonably concluded that this “blaringly
17 inconsistent” testimony could not be rectified with an
18 explanation. Cf. Ming Shi Xue v. BIA, 439 F.3d 111, 122, n.13
19 & 125 (2d Cir. 2006) (where the “inconsistency is ‘dramatic’
20 or obvious on its face . . . the petitioner can be assumed to
21 be aware-without being told-of the need to explain it”). And
3
1 Wu’s current explanation—that she assumed the woman she met at
2 Qing’s home was his wife—does not compel a contrary conclusion:
3 neither Wu’s husband nor Qing testified that a woman was present
4 during that visit. Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
5 2005) (“A petitioner must do more than offer a plausible
6 explanation for h[er] inconsistent statements to secure relief;
7 he must demonstrate that a reasonable fact-finder would be
8 compelled to credit h[er] testimony.” (quoting Zhou Yun Zhang
9 v. U.S. INS, 386 F.3d 77, 76 (2d Cir. 2004))).
10 The agency also reasonably relied on inconsistencies
11 concerning the last time Wu, her husband, and Qing dined
12 together. Wu’s husband testified that they last saw each other
13 for breakfast two days before the merits hearing. But Qing
14 testified that they last dined together more than a month
15 earlier and emphasized that he had not seen Wu or her husband
16 since that date. When asked to reconcile this testimony, Qing
17 tried to explain away the more recent meeting, stating that they
18 “bumped into each other on the street” and decided to go to
19 breakfast on a whim. The agency reasonably concluded that this
20 was not “a persuasive explanation” for the inconsistency
21 because it did not resolve Qing’s initial testimony that he had
4
1 not seen Wu and her husband in over a month. See Majidi, 430
2 F.3d at 80. Wu’s current explanation that Qing and her husband
3 “were describing two separate incidents” similarly misses the
4 mark because it also does not resolve when they last saw each
5 other. See id.
6 The agency also reasonably relied on Wu’s husband’s
7 internally inconsistent testimony. See 8 U.S.C.
8 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Wu’s
9 husband testified that he worked in Queens, detailing his drive
10 there from his home in Brooklyn. But when confronted with a
11 copy of his W-2, listing an employer in Manhattan, he changed
12 his testimony, denied ever working in Queens, and gave reasons
13 why he commuted to Manhattan by bus, rather than driving. The
14 IJ was not compelled to accept Wu’s husband’s explanation—that
15 his accountant was in Queens—because he was asked how he got
16 to work, not how he got to his accountant’s office. See Majidi,
17 430 F.3d at 80.
18 Wu now argues that it was error for the IJ to rely on this
19 inconsistency given her husband’s testimony “that he does not
20 have one stable job.” While it is true that Wu’s husband
21 testified that he had worked as a cook in Maryland and traveled
5
1 back and forth to New York, this explanation again misses the
2 mark because the inconsistency concerned Wu’s husband’s
3 testimony about his work in New York. See Majidi, 430 F.3d at
4 80.
5 While seemingly minor, these inconsistencies taken
6 together are significant, because they call into question Wu’s
7 relationship with Qing and, thus, whether Qing actually
8 witnessed Wu practicing Falun Gong. That, in turn, calls into
9 question whether Wu practices Falun Gong and thus whether she
10 was ever harmed in China on that basis. See Siewe v. Gonzales,
11 480 F.3d 160, 170 (2d Cir. 2007) (finding that “where an IJ’s
12 finding of fabrication (supported by substantial evidence)
13 serves as the basis for discrediting other evidence, a reviewing
14 court is in no position to conclude that the discrediting of
15 the remaining evidence is unsupported by substantial
16 evidence”).
17 Given these inconsistencies, which undermined Wu’s
18 credibility, it cannot be said “that no reasonable fact-finder
19 could make such an adverse credibility ruling.” Xiu Xia Lin,
20 534 F.3d at 167; see also Siewe, 480 F.3d at 170. The adverse
21 credibility determination is dispositive of asylum,
6
1 withholding of removal, and CAT relief because all three forms
2 of relief are based on the same factual predicate. Paul v.
3 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. Because we have completed our review, Wu’s pending
6 motion for a stay of removal is DENIED as moot. Any pending
7 request for oral argument in this petition is DENIED in
8 accordance with Federal Rule of Appellate Procedure 34(a)(2),
9 and Second Circuit Local Rule 34.1(b).
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
7