20-1080 Li v. Garland BIA McCarthy, IJ A206 291 068 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 20th day of April, two thousand twenty-two. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 ROBERT D. SACK, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 _____________________________________ 12 13 JIAFENG LI, 14 Petitioner, 15 16 v. 20-1080 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, New York, NY. 24 25 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 26 Assistant Attorney General; 27 Russell J. E. Verby, Senior 28 Litigation Counsel; John D. 29 Williams, Trial Attorney, Office 30 of Immigration Litigation, United 31 States Department of Justice, 32 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

4 is DENIED.

5 Petitioner Jiafeng Li, a native and citizen of the

6 People’s Republic of China, seeks review of a March 18, 2020,

7 decision of the BIA affirming a May 1, 2018, decision of an

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

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Jiafeng Li, No. A206 291 068

11 (B.I.A. Mar. 18, 2020), aff’g No. A206 291 068 (Immig. Ct.

12 N.Y. City May 1, 2018). We assume the parties’ familiarity

13 with the underlying facts and procedural history.

14 Under the circumstances, we have reviewed both the IJ’s

15 and the BIA’s opinions. Wangchuck v. Dep’t of Homeland

16 Security,

(2d Cir. 2006). The applicable

17 standards of review are well established. See 8 U.S.C.

18 § 1252(b)(4)(B); Hong Fei Gao v. Sessions,

, 76

19 (2d Cir. 2018).

20 “Considering the totality of the circumstances, and all

21 relevant factors, a trier of fact may base a credibility

22 determination on . . . the inherent plausibility of the

2 1 applicant’s or witness’s account, the consistency between the

2 applicant’s or witness’s written and oral statements

3 (whenever made and whether or not under oath, and considering

4 the circumstances under which the statements were made), the

5 internal consistency of each such statement . . . , and any

6 inaccuracies or falsehoods in such statements, without regard

7 to whether an inconsistency, inaccuracy, or falsehood goes to

8 the heart of the applicant’s claim, or any other relevant

9 factor.”

(b)(1)(B)(iii). “We defer . . . to

10 an IJ’s credibility determination unless, from the totality

11 of the circumstances, it is plain that no reasonable fact-

12 finder could make such an adverse credibility ruling.” Xiu

13 Xia Lin v. Mukasey,

(2d Cir. 2008); accord

14 Hong Fei Gao,

. Substantial evidence supports

15 the agency’s determination that Li was not credible as to her

16 claim that family planning officials in China forced her to

17 have an abortion in 2003.

18 The agency reasonably relied on Li’s submission to

19 consular officials of a visa application, in which she knew

20 the preparer of the application provided false employment and

21 financial information. See

(b)(1)(B)(iii);

22 Siewe v. Gonzales,

(2d Cir. 2007) (“[A]

3 1 single false document or a single instance of false testimony

2 may (if attributable to the petitioner) infect the balance of

3 the alien’s uncorroborated or unauthenticated evidence.”).

4 Although use of fraudulent documents created to flee or evade

5 persecution may support rather than refute an asylum claim,

6 Li obtained her visa based on false information ten years

7 after she allegedly suffered persecution and thus was not

8 fleeing persecution. See Siewe,

. Li’s

9 explanation that the preparer of her application lied was

10 unavailing because she nonetheless attended a visa interview

11 and obtained a visa knowingly based on false information

12 thereby showing her willingness to lie to obtain immigration

13 benefits. See

(b)(1)(B)(iii); see also Siewe,

14

.

15 The agency also reasonably found inconsistent Li’s visa

16 application, which stated that she had never been arrested,

17 and her testimony that she was arrested once when she was

18 forcibly taken for an abortion and a second time when she

19 sought insurance compensation from the government. See

20

(b)(1)(B)(iii). Her explanation that she

21 misunderstood the visa application was not compelling given

22 that she continued to describe her detentions as arrests at

4 1 her hearing. See Majidi v. Gonzales,

(2d

2 Cir. 2005) (“A petitioner must do more than offer a plausible

3 explanation for his inconsistent statements to secure relief;

4 he must demonstrate that a reasonable fact-finder would be

5 compelled to credit his testimony.” (internal quotation marks

6 omitted)).

7 The agency also reasonably relied further on Li’s

8 inconsistent evidence about whether she had an abortion. Her

9 U.S. medical records reported that she had an intra-uterine

10 device in China, but not her alleged abortion. See 8 U.S.C.

11 § 1158(b)(1)(B)(iii); see also Hong Fei Gao,

12 (providing that “the probative value of a witness’s prior

13 silence on particular facts depends on whether those facts

14 are ones the witness would reasonably have been expected to

15 disclose”). Her explanation for this omission was not

16 compelling. See Majidi,

.

17 Having questioned Li’s credibility, the agency

18 reasonably relied further on her failure to rehabilitate her

19 testimony with reliable corroborating evidence. See Biao

20 Yang v. Gonzales,

(2d Cir. 2007) (“An

21 applicant’s failure to corroborate his or her testimony may

22 bear on credibility, because the absence of corroboration in

5 1 general makes an applicant unable to rehabilitate testimony

2 that has already been called into question.”). In addition

3 to her inconsistent medical record, the agency reasonably

4 noted the absence of an affidavit or testimony from Li’s son

5 who lives in the United States and could have confirmed that

6 his mother was hospitalized when he was a child (although he

7 did not know why) and whether he came to the United States to

8 make it easier for Li to obtain a visa as she claimed.

9 Given the false application, inconsistencies, and lack

10 of reliable corroboration, the agency’s adverse credibility

11 determination is supported by substantial evidence. See

12

(b)(1)(B)(iii). That determination is

13 dispositive of asylum, withholding of removal, and CAT relief

14 because all three claims were based on the same factual

15 predicate. See Paul v. Gonzales,

, 156–57 (2d

16 Cir. 2006).

17 For the foregoing reasons, the petition for review is

18 DENIED. All pending motions and applications are DENIED and

19 stays VACATED.

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

6