19-4296 Shengqi v. Garland BIA Schoppert, IJ A 206 796 972 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 17th day of May, two thousand twenty-two. 5 6 PRESENT: 7 MICHAEL H. PARK, 8 BETH ROBINSON, 9 MYRNA PÉREZ, 10 Circuit Judges. 11 _____________________________________ 12 13 LI SHENGQI, 14 Petitioner, 15 16 v. 19-4296 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Zhou Wang, Esq., New York, NY. 24 25 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 26 Assistant Attorney General; Cindy 27 S. Ferrier, Assistant Director; 28 Kimberly A. Burdge, Trial 1 Attorney, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC.

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DENIED.

9 Petitioner Li Shengqi, a native and citizen of the

10 People’s Republic of China, seeks review of a November 19,

11 2019 decision of the BIA affirming a May 2, 2018 decision of

12 an Immigration Judge (“IJ”) denying his application for

13 asylum, withholding of removal, and protection under the

14 Convention Against Torture (“CAT”). In re Li Shengqi, No. A

15 206 796 972 (B.I.A. Nov. 19, 2019), aff’g No. A 206 796 972

16 (Immig. Ct. N.Y.C. May 2, 2018). We assume the parties’

17 familiarity with the underlying facts and procedural history.

18 Under the circumstances of this case, we review the IJ’s

19 decision as modified by the BIA and consider only the findings

20 that the BIA relied on. See Xue Hong Yang v. U.S. Dep’t of

21 Justice,

(2d Cir. 2005). We review an

22 adverse credibility determination under a substantial

23 evidence standard, Hong Fei Gao v. Sessions,

, 76

2 1 (2d Cir. 2018), and “the administrative findings of fact are

2 conclusive unless any reasonable adjudicator would be

3 compelled to conclude to the contrary,” 8 U.S.C.

4 § 1252(b)(4)(B).

5 “Considering the totality of the circumstances, and all

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

7 determination on the demeanor, candor, or responsiveness of

8 the applicant or witness,” and on inconsistencies within and

9 between an applicant’s statements and other evidence “without

10 regard to whether an inconsistency, inaccuracy, or falsehood

11 goes to the heart of the applicant’s claim, or any other

12 relevant factor.”

(b)(1)(B)(iii). “We defer

13 . . . to an IJ’s credibility determination unless, from the

14 totality of the circumstances, it is plain that no reasonable

15 fact-finder could make such an adverse credibility

16 ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir.

17 2008); accord Hong Fei Gao,

. Substantial

18 evidence supports the agency’s determination that Shengqi was

19 not credible as to his claim that he was arrested, detained,

20 and physically abused for practicing Christianity in China.

21 The agency reasonably relied on the inconsistencies

3 1 within Shengqi’s testimony and between his testimony and

2 written statements about how he was treated during his second

3 detention. See

(b)(1)(B)(iii). Shengqi’s

4 initial testimony that he was shocked once with an electric

5 baton while in custody was inconsistent with both his

6 application, which indicated multiple shocks, and his later

7 testimony that he was shocked 15 times. And his application

8 and testimony were inconsistent about what tactics were used

9 to keep him awake, the baton or strong lights. Although

10 Shengqi now argues that he meant he “was attacked with [an]

11 electric baton 15 times” but all of the attacks occurred

12 “during one interrogation,” and that after having shocked him

13 multiple times the police “subsequently shone a light” to

14 prevent him sleeping, he did not provide these explanations

15 to the agency and they do not compel a conclusion that his

16 statements were credible. See Majidi v. Gonzales,

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

18 a plausible explanation for his inconsistent statements to

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

20 finder would be compelled to credit his testimony.” (cleaned

21 up)). Moreover, he was questioned about the inconsistencies

4 1 and had an opportunity to explain. See Ming Shi Xue v. BIA,

2

(2d Cir. 2006) (holding that IJ may rely on

3 clear inconsistency without soliciting an explanation, but

4 asylum applicant must be provided opportunity to explain

5 inconsistencies that “are not plainly obvious”).

6 The adverse credibility determination is bolstered by

7 the IJ’s assessment of Shengqi’s demeanor. We give

8 “particular deference” to an IJ’s demeanor finding because

9 “the IJ’s ability to observe . . . demeanor places [him] in

10 the best position to evaluate whether apparent problems in

11 the . . . testimony suggest a lack of credibility or, rather,

12 can be attributed to an innocent cause such as difficulty

13 understanding the question.” Li Hua Lin v. U.S. Dep’t of

14 Justice,

(2d Cir. 2006) (citation omitted).

15 Shengqi has waived review of this finding by failing to

16 challenge it in his brief. Norton v. Sam’s Club,

114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in

18 the briefs are considered waived and normally will not be

19 addressed on appeal.”). But in any case, the IJ did not

20 misstate the record because Shengqi was unable to answer

21 clarifying questions when asked to explain his inconsistent

5 1 statements about his detention. See Li Hua Lin,

109 (“We can be still more confident in our review of

3 observations about an applicant’s demeanor where . . . they

4 are supported by specific examples of inconsistent

5 testimony.”).

6 Finally, the IJ reasonably concluded that a lack of

7 reliable corroboration prevented Shengqi from otherwise

8 meeting his burden of proof. See 8 U.S.C.

9 § 1158(b)(1)(B)(ii) (“The testimony of the applicant may be

10 sufficient to sustain the applicant’s burden without

11 corroboration, but only if the applicant satisfies the trier

12 of fact that the applicant’s testimony is credible . .

13 . [and] persuasive . . . . In determining whether the

14 applicant has met the . . . burden, the trier of fact may

15 weigh the credible testimony along with other evidence of

16 record.”). The agency was not required to credit letters

17 from individuals in China, and Shengqi’s evidence related to

18 his church attendance in the United States did not resolve

19 the credibility issues. See Y.C. v. Holder,

,

20 332, 334 (2d Cir. 2013) (“defer[ring] to the agency’s

21 evaluation of the weight to be afforded an applicant’s

6 1 documentary evidence” and upholding agency’s decision to

2 afford little weight to letter from applicant’s spouse in

3 China); Matter of H–L–H & Z–Y–Z–,

, 215

4 (B.I.A. 2010) (giving diminished evidentiary weight to

5 letters from “relatives and friends” because they were from

6 interested witnesses not subject to cross-examination), rev’d

7 on other grounds by Hui Lin Huang v. Holder,

(2d

8 Cir. 2012).

9 In sum, the inconsistencies, demeanor finding, and lack

10 of reliable corroboration provide substantial evidence for

11 the adverse credibility determination and support the

12 agency’s conclusion that Shengqi failed to meet his burden of

13 proof. See

(b)(1)(B)(ii), (iii); Xiu Xia Lin,

14

. This determination is dispositive of

15 asylum, withholding of removal, and CAT relief because all

16 three forms of relief were based on the same factual

17 predicate. See Paul v. Gonzales,

, 156–57 (2d

18 Cir. 2006).

7 1 For the foregoing reasons, the petition for review is

2 DENIED. All pending motions and applications are DENIED and

3 stays VACATED.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court 7

8