16-395 Ni v. Whitaker BIA Vomacka, IJ A075 841 782 A079 453 836

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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 18th day of December, two thousand 5 eighteen. 6 7 PRESENT: 8 JON O. NEWMAN, 9 DENNIS JACOBS, 10 PIERRE N. LEVAL, 11 Circuit Judges. 12 _____________________________________ 13 14 YI CI NI, AI YUE CHEN, 15 Petitioners, 16 17 v. 16-395 18 NAC 19 MATTHEW G. WHITAKER, ACTING 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONERS: Gary J. Yerman, New York, NY. 25 26 FOR RESPONDENT: Benjamin C. Mizer, Principal 27 Deputy Assistant Attorney General; 28 Linda S. Wernery, Assistant 29 Director; Thankful T. Vanderstar,

06152016-10 1 Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petition for review

9 is DENIED.

10 Petitioners Yi Ci Ni and Ai Yue Chen, natives and

11 citizens of the People’s Republic of China, seek review of

12 a January 14, 2016, BIA decision that affirmed the November

13 22, 2013, decision of an Immigration Judge (“IJ”) denying

14 asylum, withholding of removal, and relief under the

15 Convention Against Torture (“CAT”). In re Yi Ci Ni, Ai Yue

16 Chen, Nos. A075 841 782, A079 453 836 (B.I.A. Jan. 14,

17 2016), aff’g Nos. A075 841 782, A079 453 836 (Immig. Ct.

18 N.Y. City Nov. 22, 2013). We assume the parties’

19 familiarity with the underlying facts and procedural

20 history in this case.

21 Under these circumstances, we have reviewed both the IJ’s

22 and the BIA’s opinions “for the sake of completeness.”

23 Wangchuck v. Dep’t of Homeland Sec.,

(2d

24 Cir. 2006). The applicable standards of review are well

2 07102018-6 1 established. See Jian Hui Shao v. Mukasey,

,

2 157-58 (2d Cir. 2008).

3 Chen argued that she suffered past persecution for

4 discussing her support for Falun Gong in China and that she

5 fears persecution for practicing Falun Gong in the United

6 States. In pre-REAL ID Act cases, such as Chen’s, an adverse

7 credibility determination must be based on “specific, cogent

8 reasons” that “bear a legitimate nexus to the finding,” and

9 any discrepancy must be “substantial” when measured against

10 the record as a whole. Secaida-Rosales v. INS,

,

11 307-08 (2d Cir. 2003) (internal quotation marks omitted),

12 superseded by REAL ID Act as recognized in Xiu Xia Lin v.

13 Mukasey,

(2d Cir. 2008). Substantial

14 evidence supports the agency’s determination that Chen was

15 not credible as to her Falun Gong claim.

16 As an initial matter, the agency did not err in relying

17 in part on Chen’s statements at her credible fear interview

18 to evaluate her credibility because the interview was

19 conducted with an interpreter, the interview was

20 memorialized in a typewritten question and answer format,

21 the questions posed were designed to elicit details of

22 Chen’s asylum claim, Chen’s responses indicated that she

23 understood the questions, and the adverse credibility 3 07102018-6 1 finding was based on inconsistencies rather than omissions.

2 See Ming Zhang v. Holder,

(2d Cir.

3 2009). In finding Chen not credible, the agency reasonably

4 relied on Chen’s inconsistent statements about where she

5 was when police beat her, how they beat her, where on her

6 body she was hit, who paid for her release from detention,

7 how much was paid, and whether she left China after closing

8 her shoe store due to police harassment or whether she left

9 after police discovered her reading Falun Gong literature

10 in her relative’s shoe store. See Secaida-Rosales, 331

11 F.3d at 307-08; see also Tu Lin v. Gonzales,

,

12 402 (2d Cir. 2006) (“[E]ven where an IJ relies on

13 discrepancies or lacunae that, if taken separately, concern

14 matters collateral or ancillary to the claim, the

15 cumulative effect may nevertheless be deemed consequential

16 by the fact-finder.” (internal quotation marks and citation

17 omitted)). Furthermore, the agency reasonably found that

18 Chen failed to rehabilitate her testimony or satisfy her

19 burden with reliable corroborating evidence, and did not

20 err in declining to credit a letter from her uncle as it

21 was not sworn before a notary and lacked crucial details.

22 See Biao Yang v. Gonzales,

(2d Cir. 2007)

23 (“An applicant’s failure to corroborate his or her 4 07102018-6 1 testimony may bear on credibility, because the absence of

2 corroboration in general makes an applicant unable to

3 rehabilitate testimony that has already been called into

4 question.”); see also Y.C. v. Holder,

(2d

5 Cir. 2013) (deferring to agency’s decision to afford little

6 weight to relative’s letter because it was unsworn and from

7 an interested witness).

8 Ni and Chen further asserted a fear of persecution based

9 on the birth of their children in the United States in

10 violation of China’s population control program. For largely

11 the same reasons as set forth in Jian Hui Shao, we find no

12 error in the agency’s determination that they failed to

13 satisfy their burden for asylum, withholding of removal, and

14 CAT relief based on their family planning claim.

at 158-67; see also Paul v. Gonzales,

, 156-57

16 (2d Cir. 2006).

17 For the foregoing reasons, the petition for review is

18 DENIED. As we have completed our review, the pending motion

19 for a stay of removal in this petition is DISMISSED as moot.

20 FOR THE COURT: 21 Catherine O’Hagan Wolfe 22 Clerk of Court

5 07102018-6