22-6004 Shan v. Garland BIA Zagzoug, IJ A208 111 476

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 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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 19th day of December, two thousand 4 twenty-three. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 RICHARD C. WESLEY, 10 GERARD E. LYNCH, 11 Circuit Judges. 12 _____________________________________ 13 14 LIANG SHAN, 15 Petitioner, 16 17 v. 22-6004 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 1 FOR PETITIONER: Troy Nader Moslemi, Esq., Flushing, NY. 2 3 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 4 Attorney General; Jeffery R. Leist, Senior 5 Litigation Counsel; Kathleen Kelly Volkert, 6 Trial Attorney, Office of Immigration 7 Litigation, United States Department of 8 Justice, Washington, DC.

9 UPON DUE CONSIDERATION of this petition for review of a Board of

10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

11 DECREED that the petition for review is DENIED.

12 Petitioner Liang Shan, a native and citizen of the People’s Republic of China,

13 seeks review of a December 7, 2021, decision of the BIA affirming a February 25,

14 2019, decision of an Immigration Judge (“IJ”) denying her application for asylum,

15 withholding of removal, and relief under the Convention Against Torture

16 (“CAT”). In re Liang Shan, No. A208 111 476 (B.I.A. Dec. 7, 2021), aff’g No. A208

17 111 476 (Immig. Ct. N.Y. City Feb. 25, 2019). We assume the parties’ familiarity

18 with the underlying facts and procedural history.

19 Under the circumstances, we have reviewed the IJ’s decision as modified by

20 the BIA, i.e., minus the findings that the BIA did not reach. See Xue Hong Yang v.

21 U.S. Dep’t of Just.,

(2d Cir. 2005). We review an adverse

22 credibility determination “under the substantial evidence standard,” Hong Fei Gao 2 1 v. Sessions,

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

2 are conclusive unless any reasonable adjudicator would be compelled to conclude

3 to the contrary,”

(b)(4)(B).

4 “Considering the totality of the circumstances, and all relevant factors, a

5 trier of fact may base a credibility determination on . . . the consistency between

6 the applicant’s or witness’s written and oral statements (whenever made and

7 whether or not under oath, and considering the circumstances under which the

8 statements were made), the internal consistency of each such statement, [and] the

9 consistency of such statements with other evidence of record . . . without regard to

10 whether an inconsistency, inaccuracy, or falsehood goes to the heart of the

11 applicant’s claim, or any other relevant factor.”

(b)(1)(B)(iii).

12 “We defer . . . to an IJ’s credibility determination unless, from the totality of the

13 circumstances, it is plain that no reasonable fact-finder could make such an

14 adverse credibility ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir.

15 2008); accord Hong Fei Gao,

.

16 Shan alleged that the police in China detained and beat her for practicing

17 Christianity in an unregistered church and that she continues to practice

18 Christianity and fears future harm as a result. Substantial evidence supports the

3 1 agency’s determination that Shan was not credible.

2 The agency reasonably relied on Shan’s inconsistent statements regarding

3 how many people were arrested with her, how many police officers were

4 involved, how long she was detained, how much money her father paid for her

5 release, and how many times she reported to police. See 8 U.S.C.

6 § 1158(b)(1)(B)(iii); Likai Gao v. Barr,

, 145 n.8 (2d Cir. 2020) (“[E]ven a

7 single inconsistency might preclude an alien from showing that an IJ was

8 compelled to find him credible. Multiple inconsistencies would so preclude even

9 more forcefully.”). Despite an opportunity to explain these inconsistencies, Shan

10 did not compellingly do so. See Majidi v. Gonzales,

(2d Cir. 2005)

11 (“A petitioner must do more than offer a plausible explanation for . . . inconsistent

12 statements to secure relief; [s]he must demonstrate that a reasonable fact-finder

13 would be compelled to credit h[er] testimony.” (quotation marks omitted)); cf. Ming

14 Zhang v. Holder,

(2d Cir. 2009) (noting that an applicant’s assertion

15 that she was nervous or afraid did not overcome a record of a sworn interview

16 statement).

17 The inconsistencies constitute substantial evidence for the adverse

18 credibility determination. See

(b)(1)(B)(iii); Likai Gao,

1 145 n.8. * The adverse credibility determination is dispositive of all forms of relief.

2 See Hong Fei Gao,

(“Where the same factual predicate underlies a

3 petitioner’s claims for asylum, withholding of removal, and protection under the

4 CAT, an adverse credibility determination forecloses all three forms of relief.”).

5 Contrary to Shan’s contention, the IJ was not required to find her practice of

6 Christianity sincere and credible based solely on her pastor’s testimony, presumed

7 credible, that she was baptized and attends church and did not err in concluding

8 that, given the number of inconsistent statements provided under oath, she had

9 been deceptive about her religious sincerity. See Xiu Xia Lin,

10 (“[A]n IJ may rely on any inconsistency or omission in making an adverse

11 credibility determination as long as the ‘totality of the circumstances’ establishes

12 that an asylum applicant is not credible.”); see also Siewe v. Gonzales,

,

13 170 (2d Cir. 2007) (“An IJ may, either expressly or impliedly, rely on falsus in uno

14 to discredit evidence that does not benefit from corroboration or authentication

* We note that the agency’s inconsistency finding regarding Shan’s use of a passport on a trip to Thailand is not strong. Nevertheless, remand would be futile because the remaining findings constitute substantial evidence for the adverse credibility determination. See Lianping Li v. Lynch,

(2d Cir. 2016); see also Likai Gao,

n.8.

5 1 independent of the petitioner’s own credibility.”).

2 For the foregoing reasons, the petition for review is DENIED. All pending

3 motions and applications are DENIED and stays VACATED.

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

6