21-6149 Yen-Xiu v. Garland BIA Zagzoug, IJ A208 196 709

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.

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 8th day of January, two thousand twenty- four.

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, JOHN M. WALKER, JR., MYRNA PÉREZ, Circuit Judges. _____________________________________

LIN YEN-XIU, Petitioner,

v. 21-6149 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: John S. Yong, New York, NY.

FOR RESPONDENT: Brian M. Boynton, Acting Assistant Attorney General, Civil Division; Anthony C. Payne, Assistant Director, Office of Immigration Litigation; Jennifer A. Bowen, Trial Attorney, Office of Immigration Litigation, United 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 Yen-Xiu, a native and citizen of the People’s Republic of

China, seeks review of a March 2, 2021 decision of the BIA affirming an August 2,

2018 decision of an Immigration Judge (“IJ”) denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture

(“CAT”). In re Lin Yen-Xiu, No. A208 196 709 (B.I.A. Mar. 2, 2021), aff’g No. A208

196 709 (Immig. Ct. N.Y. City Aug. 2, 2018). We assume the parties’ familiarity

with the underlying facts and procedural history.

We have reviewed the IJ’s decision as modified by the BIA. See Xue Hong

Yang v. U.S. Dep’t of Just.,

(2d Cir. 2005). The applicable standards

of review are well established. See

(b)(4)(B) (“[T]he administrative

findings of fact are conclusive unless any reasonable adjudicator would be

2 compelled to conclude to the contrary.”); Yanqin Weng v. Holder,

(2d Cir. 2009) (reviewing factual findings for substantial evidence and questions

of law and application of law to fact de novo); Hong Fei Gao v. Sessions,

(2d Cir. 2018) (reviewing adverse credibility determinations “under the

substantial evidence standard”).

An asylum applicant has the burden to establish past persecution or a well-

founded fear of future persecution. See

(b)(1)(B)(i);

(a), (b)(1) & (2). “The testimony of the applicant may be sufficient to

sustain the applicant’s burden without corroboration, but only if the . . . testimony

is credible, is persuasive, and refers to specific facts sufficient to demonstrate that

the applicant is a refugee. In determining whether the applicant has met the

applicant’s burden, the trier of fact may weigh the credible testimony along with

other evidence of record. Where the trier of fact determines that the applicant

should provide evidence that corroborates otherwise credible testimony, such

evidence must be provided unless the applicant does not have the evidence and

cannot reasonably obtain the evidence.”

(b)(1)(B)(ii). “In order

for an alien’s testimony to carry the day on its own, the statute requires the alien

to satisfy the trier of fact on all three counts—showing his testimony is credible, is

3 persuasive, and refers to specific facts sufficient to demonstrate that the applicant

is a refugee.” Garland v. Ming Dai,

, 1680 (2021) (quotation marks

omitted). The agency did not err in concluding that Lin failed to meet his burden

of proof given the issues regarding his credibility and his failure to present reliable

or reasonably available corroboration.

I. Credibility

An IJ “may base a credibility determination on the demeanor, candor, or

responsiveness of the applicant or witness, the inherent plausibility of the

applicant’s or witness’s account, [and] the consistency between the applicant’s or

witness’s written and oral statements (whenever made and whether or not under

oath, and considering the circumstances under which the statements were made).”

(b)(1)(B)(iii). Substantial evidence supports the agency’s

conclusion that Lin was not credible as to his claim that he was arrested and

detained for attending an underground church in China. We defer to the IJ’s

determination that Lin’s demeanor and lack of responsiveness undermined his

credibility because an “IJ’s ability to observe the witness’s demeanor places her in

the best position to evaluate whether apparent problems in the witness’s

testimony suggest a lack of credibility or, rather, can be attributed to an innocent

4 cause such as difficulty understanding the question.” Jin Chen v. U.S. Dep’t of

Justice,

(2d Cir. 2005). Moreover, the record reflects that, among

other issues, counsel had to repeatedly ask Lin how many people beat him when

he was arrested, he was initially unresponsive when asked about a fine receipt,

and he paused when asked to name his church in the United States.

Lin’s inconsistent statements about how long the police detained him adds

substantial support for the adverse credibility determination. See

(b)(1)(B)(iii). He stated in his written statement and testimony that the

police detained him for three days, but he told an asylum officer that he was

detained for fifteen days. The agency was not required to credit his explanation

that the interpreter at the interview was not very good because he had confirmed

he understood the interpreter and the interview record reveals that he both stated

that he was detained for fifteen days and gave specific dates fifteen days apart for

his detention and release. See Majidi v. Gonzales,

(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.” (quotation marks omitted)). Further,

the agency did not err in relying on the record of the credible fear interview. The

5 agency may rely on such a record if it is sufficiently reliable, i.e., if it was

“(1) conducted in a non-coercive and careful manner, and (2) appropriately

documented.” Ming Zhang v. Holder,

, 725–26 (2d Cir. 2009). Lin’s

interview was conducted in Mandarin, which he testified he spoke fluently; he

told the asylum officer he understood the interpreter; the interview was recorded

in a typewritten document setting forth questions and answers; and the

interviewing officer explained the purpose of the interview and importance of

providing accurate testimony, clarified questions, and asked questions to elicit an

asylum claim, including multiple questions about Lin’s detention.

Given the demeanor finding and this inconsistency about the sole incident

of persecution, substantial evidence supports the adverse credibility

determination even absent the IJ’s other findings. See Likai Gao v. Barr,

, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude an alien

from showing that an IJ was compelled to find him credible. Multiple

inconsistencies would so preclude even more forcefully.”); see also Lianping Li v.

Lynch,

(2d Cir. 2016) (holding that “we may . . . deem remand

futile . . . if (1) substantial evidence . . . [,] considered in the aggregate, supports the

IJ’s finding that petitioner lacked credibility” and (2) “we can state with confidence

6 that the IJ would adhere to his decision were the petition remanded” (quotation

marks omitted)).

II. Corroboration

Lin did not rehabilitate his credibility or otherwise meet his burden of proof.

“An applicant’s failure to corroborate . . . may bear on credibility, because the

absence of corroboration in general makes an applicant unable to rehabilitate

testimony that has already been called into question.” Biao Yang v. Gonzales,

(2d Cir. 2007). And “an applicant may be generally credible[,] but

his testimony may not be sufficient to carry the burden of persuading the fact

finder of the accuracy of his claim of crucial facts if he fails to put forth

corroboration that should be readily available.” Wei Sun v. Sessions,

(2d Cir. 2018).

The agency did not err in declining to give weight to the letter from Lin’s

mother and the fine receipt because the letter was produced for litigation, his

mother was not available for cross-examination, and his testimony about the fine

receipt was not responsive. See Y.C. v. Holder,

(2d Cir. 2013)

(“We defer to the agency’s determination of the weight afforded to an alien’s

documentary evidence.”). Nor does the fine receipt resolve the inconsistency

7 regarding the length of detention because it is dated June 10, 2015, but Lin stated

at his interview that he was not released until June 23, 2015.

Nor did the IJ err in requiring additional corroboration from Lin about his

church attendance in the United States between 2015 and 2017 because he testified

that his cousin had attended church with him. Lin variously said his cousin could

not provide a letter because he was in Long Island, in upstate New York, or

working in a restaurant and not well-educated. These explanations do not show

that a written statement or testimony was unavailable given the length of time Lin

had to prepare for his hearing. See

(b)(4) (“No court shall reverse

a determination made by a trier of fact with respect to the availability of

corroborating evidence.”). Lin also did not produce a letter from the individual

who introduced him to Christianity in China, or otherwise sufficiently explain

why he was unable to produce such a letter.

In sum, the agency did not err in finding that Lin failed to meet his burden

of proof given his lack of credibility and failure to provide reliable or reasonably

available corroboration. See

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

Mukasey,

(2d Cir. 2008) (“We defer . . . to an IJ’s credibility

determination unless, from the totality of the circumstances, it is plain that no

8 reasonable fact-finder could make such an adverse credibility ruling.”). We note

that the BIA found that Lin had waived withholding and CAT relief, but did not

explain why those forms of relief had to be argued separately where, as here, the

IJ denied them on the same grounds as asylum. We do not remand on this basis

because the agency’s conclusion that Lin was not credible and that he failed to

meet his burden of proof as to asylum is dispositive because all three forms of

relief were based on the same factual predicate. See Paul v. Gonzales,

,

156–57 (2d Cir. 2006).

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

motions and applications are DENIED and stays VACATED.

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

9