18-2305 Man v. Garland BIA Hom, IJ A206 231 032 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 March, two thousand twenty-one.

PRESENT: BARRINGTON D. PARKER, SUSAN L. CARNEY, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

LIN MAN, Petitioner,

v. 18-2305 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.* _____________________________________

FOR PETITIONER: Gary J. Yerman, The Yerman Group, New York, NY.

FOR RESPONDENT: Lindsay Marshall, Office of Immigration Litigation, United

* The Clerk of Court is directed to amend the caption to conform to the above. 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 Lin Man, a native and citizen of the People’s

Republic of China, seeks review of a July 23, 2018 decision

of the BIA affirming an August 11, 2017 decision of an

Immigration Judge (“IJ”) denying Man’s application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Lin Man, No. A 206

231 032 (B.I.A. July 23, 2018), aff’g No. A 206 231 032 (Immig.

Ct. N.Y.C. Aug. 11, 2017). We assume the parties’

familiarity with the underlying facts and procedural history.

Under the circumstances of this case, we have reviewed

both the IJ’s and BIA’s decisions “for the sake of

completeness.” Wangchuck v. Dep’t of Homeland Sec.,

(2d Cir. 2006). The applicable standards of review

are well established. See

(b)(4)(B); Hong Fei

Gao v. Sessions,

(2d Cir. 2018) (reviewing

adverse credibility determination under a substantial

2 evidence standard). “Considering the totality of the

circumstances, and all relevant factors, a trier of fact may

base a credibility determination on . . . the consistency

between the applicant’s or witness’s written and oral

statements . . . , 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, . . . or any other relevant factor.”

(b)(1)(B)(iii). “We defer . . . to an IJ’s

credibility determination unless . . . it is plain that no

reasonable fact-finder could make such an adverse credibility

ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir.

2008); accord Hong Fei Gao,

. Substantial

evidence supports the agency’s adverse credibility

determination.

The agency reasonably relied on inconsistencies between

Man’s statements at his credible fear interview and his

testimony. As an initial matter, the interview record bore

sufficient “hallmarks of reliability” because the interview

was memorialized in a typewritten list of questions and

answers, Man had an interpreter, his responses indicated that

3 he understood the questions, and the questions addressed past

harm and fear of future harm as needed to elicit an asylum

claim. Ming Zhang v. Holder,

(2d Cir.

2009) (citing Ramsameachire v. Ashcroft,

, 180–

81 (2d Cir. 2004)). Moreover, a representative from Man’s

attorney’s office was present during the interview. Man’s

challenges to the interview record are unsupported. Contrary

to Man’s testimony that they changed the interpreter during

the interview because the quality of the interpretation was

poor, the record reflects that an issue with the telephone

connection caused the change. As Man notes, the interview

record acknowledges that “[t]here may be areas of the

individual’s claim that were not explored or documented for

purposes of this threshold screening.” While this statement

supports the proposition that the agency needed to exercise

particular care in relying on omissions from Man’s statements

during the credible fear interview, it did not preclude the

agency from relying on inconsistencies between the credible

fear interview and Man’s subsequent testimony in making an

adverse credibility determination. See Ming Zhang, 585 F.3d

at 724–25 (stressing importance of nature of inconsistency).

4 Given the overall reliability of the record before the agency,

the inconsistencies between Man’s interview statements and

testimony provide substantial evidence for its adverse

credibility determination.

First, the agency reasonably determined that Man’s

testimony that he was detained for 15 days in March 2011 was

inconsistent with his interview statements that he was

detained for only a week. Man did not provide an explanation

for the inconsistency.

Second, the agency reasonably determined that Man’s

testimony and statements at his credible fear interview were

inconsistent regarding why he became a Christian. At his

credible fear interview, Man stated that a friend introduced

him to Christianity after he failed his college exam. At his

agency hearing, however, Man testified that he started

attending church because his coworkers bullied him. The IJ

was not required to credit Man’s explanation that these were

both reasons and that he did not tell his complete story at

his interview, particularly since Man did not explain why he

did not mention failing the exam as a reason for his turn to

Christianity in his testimony. See Majidi v. Gonzales, 430

(2d Cir. 2005) (“A petitioner must do more than

offer a plausible explanation for his inconsistent statements

to secure relief; he must demonstrate that a reasonable fact-

finder would be compelled to credit his testimony.” (internal

quotation marks and citations omitted)).

Finally, Man’s statement at his credible fear interview

that he was arrested and detained seven or eight times was

inconsistent with his testimony that he was arrested and

detained four times. When confronted with this

inconsistency, Man testified that the interview happened only

days after he was taken into immigration custody and the

interpretation was poor. The IJ was not required to accept

this explanation, however, because the interview record

reflects that Man was detained on September 11, 2013, but his

interview did not occur until September 30, 2013; the record

reflects that Man understood the interpreter because he

provided responsive answers; and, during the interview, Man

was accompanied by a consultant from his attorney’s office

for assistance. See Majidi, 430 F.3d at 80.

Given these inconsistencies, two of which relate to

alleged incidents of persecution, substantial evidence

6 supports the adverse credibility determination. See Xian

Tuan Ye v. Dep’t of Homeland Sec.,

(2d Cir.

2006) (holding that “a material inconsistency in an aspect of

[the applicant]’s story that served as an example of the very

persecution from which he sought asylum . . . afforded

substantial evidence to support the adverse credibility

finding” (internal quotation marks omitted)).

The BIA determined that the adverse credibility

determination was dispositive of Man’s past persecution

claim, but separately analyzed, and rejected, Man’s fear of

future persecution based on his claim that he was a practicing

Christian in the United States. Man has waived any challenge

to the agency’s finding on this issue by not addressing the

issue in his brief. See Yueqing Zhang v. Gonzales,

, 541 n.1, 545 n.7 (2d Cir. 2005) (petitioner abandons

issues not raised in his brief). Because Man did not meet

the lower burden of establishing eligibility for asylum, he

cannot meet the higher standards for withholding of removal

and CAT protection. See Lecaj v. Holder,

(2d Cir. 2010).

For the foregoing reasons, the petition for review is

7 DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

8