Qian v. Garland

22-6012
Qian v. Garland
BIA
Zagzoug, IJ
A215 993 009/010
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 29th day of November, two thousand twenty-three.
PRESENT:
JOHN M. WALKER, JR.,
MICHAEL H. PARK,
SARAH A. L. MERRIAM,
Circuit Judges.
_____________________________________
FUQIANG QIAN, QIUYUE JIANG,
Petitioners,
v. 22-6012-ag
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Gary J. Yerman, The Yerman Group, LLC, New
York, NY.
FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant
Attorney General; Cindy S. Ferrier, Assistant
Director; Brendan P. Hogan, Attorney, Office of
Immigration Litigation, United States Department
of Justice, Washington, D.C.
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.
Petitioners, Fuqiang Qian (“Qian”) and Qiuyue Jiang (“Jiang”), natives and
citizens of the People’s Republic of China, seek review of a December 30, 2021, decision
of the BIA affirming a March 29, 2019, decision of an Immigration Judge (“IJ”) denying
Jiang’s application for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). See In re Qiuyue Jiang, Fuqiang Qian, Nos. A 215 993
009/010 (B.I.A. Dec. 30, 2021), aff’g Nos. A 215 993 009/010 (Immig. Ct. N.Y. City
Mar. 29, 2019). We assume the parties’ familiarity with the underlying facts and
procedural history.
We review both the IJ’s and the BIA’s decisions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
adverse credibility determinations “under the substantial evidence standard” and we
review questions of law and application of law to fact de novo. Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B).
“[A] person who has been forced to abort a pregnancy . . . or who has been
persecuted . . . for other resistance to a coercive population control program, shall be
deemed to have been persecuted on account of political opinion, and a person who has a
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well founded fear that he or she will be . . . subject to persecution for such failure, refusal,
or resistance shall be deemed to have a well founded fear of persecution on account of
political opinion.” 8 U.S.C. § 1101(a)(42). The asylum applicant bears the burden of
proof in establishing that the applicant is a refugee within the meaning of 8 U.S.C. §
1101(a)(42). See id. § 1158(b)(1)(B)(i). “The testimony of the applicant may be
sufficient to sustain the applicant’s burden without corroboration, but only if the
applicant satisfies the trier of fact that the . . . testimony is credible, is persuasive, and
refers to specific facts sufficient to demonstrate that the applicant is a refugee. In
determining whether the applicant has met the applicant’s burden, the trier of fact may
weigh the credible testimony along with other evidence of record.” Id.
§ 1158(b)(1)(B)(ii).
[A] trier of fact may base a credibility determination on . . . the inherent
plausibility of the applicant’s or witness’s account, the consistency between
the applicant’s or witness’s written and oral statements (whenever made and
whether or not under oath, and considering the circumstances under which
the statements were made), the internal consistency of each such statement,
the consistency of such statements with other evidence of record . . . , and
any inaccuracies or falsehoods in such statements, without regard to whether
an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s
claim, or any other relevant factor.
Id. § 1158(b)(1)(B)(iii).
The agency made an adverse credibility determination against Jiang and separately
determined that the record evidence did not corroborate Jiang’s claim. Substantial
evidence supports the agency’s determination that Jiang did not meet her burden of proof
given the credibility issues and lack of corroboration. See Xiao Ji Chen v. U.S. Dep’t of
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Just., 471 F.3d 315, 341 (2d Cir. 2006).
Substantial evidence supports the agency’s adverse credibility determination
because Jiang’s testimony was internally inconsistent and inconsistent with her written
statement and documentary evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii).
First, Jiang initially testified that she was forced to have two abortions. On cross-
examination, however, she explained that she meant she was persecuted twice, the first
time being when she was required to have an IUD inserted on May 20, 2012, after the
birth of her first child. But this explanation conflicted with her application, which
reported that she was forced to have the IUD inserted on that date in 2010. Even though
Jiang’s explanation that she made the statement because she was nervous is plausible, on
our review for substantial evidence, we cannot say that the agency was required to accept
Jiang’s explanation. See Majidi v. Gonzales, 430 F.3d 77, 80–81 (2d Cir. 2005) (“A
petitioner must do more than offer a plausible explanation for h[er] inconsistent
statements to secure relief; [s]he must demonstrate that a reasonable fact-finder would
be compelled to credit h[er] testimony.” (citation and quotation marks omitted)); see also
Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009) (“We again reject the notion
that a petitioner’s claim that she was nervous and distracted during the credible fear
interview automatically undermines or negates its reliability as a source of her
statements.”).
Second, Jiang made inconsistent statements about the fine imposed for the
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unauthorized pregnancy. 1 She stated at her asylum interview and initially testified that
family planning officials came to her home and asked her to pay 130,000 renminbi, but
she later testified inconsistently that those officials asked her husband to pay the fine and
that only he was present. When she was asked to explain, Jiang stated that a doctor
spoke with her husband about the fine in 2016, but she then contradicted herself, stating
that it was actually a family planning official that spoke with him. The agency was not
compelled to accept her varying and inconsistent statements and explanations. See
Majidi, 430 F.3d at 79–80.
Finally, the agency deemed it implausible that Jiang did not know that a forced
abortion was a possible consequence of a family planning violation; we find that
determination “reasonable.” Ming Xia Chen v. BIA, 435 F.3d 141, 146 (2d Cir. 2006).
We defer to the agency’s inferences as long as they are “made available to the factfinder
by record facts, or even a single fact, viewed in the light of common sense and ordinary
experience.” Siewe v. Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007). Here, it cannot
be said that the IJ’s inference was based on bald speculation, see id., because of (1)
Jiang’s testimony that she thought she could “give the birth” if she had “the connection to
pay the fine,” Certified Admin. Record at 132, and (2) the large number of claims of
1
The agency erred in stating that Jiang did not mention a fine in her written statement;
she mentioned it but did not provide details. This error does not require remand given
the other grounds for the agency’s adverse credibility determination. See Li Hua Lin v.
U.S. Dep’t of Just., 453 F.3d 99, 107 (2d Cir. 2006) (clarifying that remand is not
required when an IJ’s “reliance on the erroneous aspect of . . . reasoning is substantially
tangential to . . . non-erroneous findings”).
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coerced and forced abortions brought as the basis for asylum from Chinese nationals, see,
e.g., Jian Hui Shao v. Mukasey, 546 F.3d 138, 142 (2d Cir. 2008) (noting that “hundreds
of petitions for review” of claims of forced abortion or sterilizations are brought by
Chinese nationals).
Furthermore, the agency did not err in finding that Jiang’s documentary evidence
failed to rehabilitate her credibility or otherwise corroborate her claim. See
8 U.S.C. § 1158(b)(1)(B)(ii). Jiang explained that she had no documentation of the fine
because she did not pay it, but that does not explain why there was no written statement
or testimony from her husband to corroborate the fine. See Yan Juan Chen v. Holder,
658 F.3d 246, 253 (2d Cir. 2011) (“[B]ecause [petitioner] and her husband had a common
interest in her presenting the strongest possible case, it is not unfair to hold her
responsible for her husband’s decision not to testify. . . .”). And Jiang’s medical records
did not clearly corroborate a forced abortion given that the records (1) included both a
reference to a live birth and a note that the termination was requested, and (2) reflected
possible problems with the pregnancy. The agency reasonably found that this
documentation raised more questions than it answered. Jiang’s explanation that the
doctor who prepared the report was unprofessional is not compelling given her burden of
proof and lack of affirmative explanation or clarification about the meaning of the
records she submitted. See 8 U.S.C. § 1158(b)(1)(B)(ii); Majidi, 430 F.3d at 80.
In sum, the inconsistencies in Jiang’s own testimony and between her testimony
and the evidence in the record call her credibility into question, and the combination of
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the credibility issues and the lack of any meaningful corroboration of her claims supports
the agency’s conclusion that Jiang failed to satisfy her burden of proof. See 8 U.S.C. §
1158(b)(1)(B)(ii), (iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (“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.”). These determinations are dispositive of asylum, withholding of
removal, and CAT relief because all three claims are based on the same factual predicate.
See Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010); Paul v. Gonzales, 444 F.3d
148, 156–57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. All pending
motions and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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