16-3102 Wei v. Sessions BIA Loprest, IJ A205 235 591 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.

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 22nd day of February, two thousand eighteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, PETER W. HALL, DENNY CHIN, Circuit Judges. _____________________________________

YANJUN WEI, Petitioner,

v. 16-3102 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Thomas V. Massucci, New York, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Russell J. E. Verby, Senior Litigation Counsel; John D. Williams, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

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.

Petitioner Yanjun Wei, a native and citizen of the People’s

Republic of China, seeks review of an August 29, 2016, decision

of the BIA affirming an October 5, 2015, decision of an

Immigration Judge (“IJ”) denying Wei’s application for asylum,

withholding of removal, and relief under the Convention Against

Torture (“CAT”). We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

Under the circumstances of this case, we have reviewed the

adverse credibility determination as modified by the BIA. See

Guan v. Gonzales,

(2d Cir. 2005). The

standards of review are well established. See

(b)(4); Lin v. Mukasey,

(2d Cir.

2008). The agency may, “[c]onsidering the totality of the

2 circumstances,” base a credibility finding on an asylum

applicant’s “demeanor, candor, or responsiveness,” “the

plausibility of the . . . account,” and inconsistencies in her

statements and other evidence, “without regard to whether an

inconsistency, inaccuracy, or falsehood goes to the heart of

the applicant’s claim.”

(b)(1)(B)(iii); Lin,

. Substantial evidence supports the agency’s

determination that Wei was not credible.

Wei’s testimony is inconsistent as to whether her mother

was aware of her Falun Gong practice. Compare App. 117 (“Only

my husband know.”), with App. 135 (“my mother aware of it”).

To the extent that she denied her mother’s knowledge, moreover,

it was reasonable for the agency to find that testimony

implausible given that her mother lived with Wei in a small home

in which Wei claimed to practice Falun Gong for one to two hours

per day. Although Wei explained that her mother went for a walk

every time Wei practiced Falun Gong, the IJ was not required

to accept that explanation. See Majidi v. Gonzales,

(2d Cir. 2005).

3 The agency also did not err in concluding that Wei’s

testimony about her arrest undermined her claim. Wei testified

that the police handcuffed her and then ordered her to put on

her coat. Although a minor point, the IJ was not precluded from

relying on the implausibility of the police telling Wei to put

on an article of clothing after they had handcuffed her.

Although Wei contends that handcuffed persons often wear coats

thrown over their heads or upper bodies, the IJ’s skepticism

of her testimony was based on a plain reading of the record,

and “[d]ecisions as to . . . which of competing inferences to

draw are entirely within the province of the trier of fact.”

Delmage v. Corio,

, 44 (2d Cir. 2000).

The agency’s demeanor findings, to which “[w]e give

particular deference,” further support the adverse credibility

determination. Chen v. DOJ,

(2d Cir. 2005).

The record supports the conclusion that Wei became hesitant and

nonresponsive on cross-examination, requiring the attorney to

repeat questions to elicit direct and complete answers.

Moreover, Wei failed to resolve her credibility issues with

reliable corroboration of either her Falun Gong practice or past

4 persecution. See Yang v. Gonzales,

(2d Cir.

2007). The IJ reasonably gave diminished weight to a discharge

letter from Wei’s previous employer and a detention notice from

the Kaifeng Municipal Public Security Bureau because the

drafters were unavailable for cross examination and the

documents were unauthenticated. And the only evidence of Wei’s

Falun Gong practice was a letter from a friend and photographs

of Wei posing in various unidentified positions. See Y.C. v.

Holder,

(2d Cir. 2013).

We note that the agency erred in finding that Wei was unable

to explain how the police became aware of her Falun Gong practice

given her testimony that a residential committee member

reported her activities. In addition, the agency erred in

finding that Wei was not consistent as to the day on which she

was arrested, as there is no contradiction between her arrest

on a Saturday and her testimony that she worked that day. Her

testimony makes clear that although she generally worked Monday

to Friday, she also worked on weekends when necessary. But

given (1) the inconsistency and implausibility of her testimony

concerning her mother’s knowledge about her Falun Gong

5 practice; (2) the demeanor finding; and (3) Wei’s lack of

reliable corroborating evidence, substantial evidence supports

the agency’s adverse credibility determination. The errors do

not mandate remand because “the agency’s ultimate ruling . . .

is supported by the substantial evidence and it is clear that

the same decision would be made on remand.” Li v. Lynch,

(2d Cir. 2016). The adverse credibility

determination is dispositive of asylum, withholding of removal,

and CAT relief because all three claims are based on the same

factual predicate. See Paul v. Gonzales,

(2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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