     18-424
     Sun v. Barr
                                                                                  BIA
                                                                           Vomacka, IJ
                                                                          A205 631 399
                        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 13th day of January, two thousand twenty.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            JOHN M. WALKER, JR.,
 9                 Circuit Judges.1
10   _____________________________________
11
12   XIU LAN SUN,
13            Petitioner,
14
15                 v.                                            18-424
16                                                               NAC
17   WILLIAM P. BARR, UNITED STATES
18   ATTORNEY GENERAL,
19            Respondent.
20   _____________________________________
21
22   FOR PETITIONER:                  Mike P. Gao, Flushing, NY.
23
24   FOR RESPONDENT:                  Chad A. Readler Acting Assistant
25                                    Attorney General; Russell J.E.
26                                    Verby, Senior Litigation Counsel;
27                                    John D. Williams, Trial Attorney,

     1The panel originally included Circuit Judge Christopher F. Droney, who fully
     retired from the court on December 31, 2019. This case is decided by the
     remaining two judges, consistent with section E(b) of the Internal Operating
     Procedures of the Second Circuit.
1                               Office of Immigration Litigation,
2                               United States Department of
3                               Justice, Washington, DC.
4          UPON DUE CONSIDERATION of this petition for review of a

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

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

7    is DENIED.

8          Petitioner Xiu Lan Sun, a native and citizen of the

9    People’s Republic of China, seeks review of a February 6,

10   2018, decision of the BIA affirming a May 17, 2017, decision

11   of an Immigration Judge (“IJ”) denying Sun’s application for

12   asylum,   withholding      of   removal,      and   relief   under   the

13   Convention Against Torture (“CAT”).           In re Xiu Lan Sun, No.

14   A 205 631 399 (B.I.A. Feb. 6, 2018), aff’g No. A 205 631 399

15   (Immig. Ct. N.Y. City May 17, 2017).           We assume the parties’

16   familiarity with the underlying facts and procedural history

17   in this case.

18         We have reviewed both the BIA’s and IJ’s decisions.            See

19   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).

20   The applicable standards of review are well established.             See

21   8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d

22   67,   76–77   (2d   Cir.    2018).       In    making   a    credibility

23   determination, the agency must “[c]onsider[] the totality of

24   the circumstances” and may base a finding on the applicant’s


                                          2
1    “demeanor, candor, or responsiveness . . . , the inherent

2    plausibility         of    the     applicant’s       .     .    .     account,”

3    inconsistencies in the applicant’s statements or between her

4    statements and other evidence, “without regard to whether an

5    inconsistency, inaccuracy, or falsehood goes to the heart of

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

7    8 U.S.C. § 1158(b)(1)(B)(iii).                 “We defer . . . to an IJ’s

8    credibility determination unless, from the totality of the

9    circumstances, it is plain that no reasonable fact-finder

10   could make such an adverse credibility ruling.”                     Xiu Xia Lin

11   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei

12   Gao,    891   F.3d    at    76.     As   discussed       below,     substantial

13   evidence supports the adverse credibility determination.

14          The IJ reasonably concluded that Sun’s written statements

15   and    testimony      offered      varying     accounts    of     her   alleged

16   persecution—that she was required to have an intrauterine

17   device (“IUD”) in 1986, have pregnancy checks thereafter, and

18   was forced to have an abortion in 2004.                         See 8 U.S.C.

19   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163–64, 166–

20   67.    In her written statements, Sun represented that she was

21   required to have an IUD after she had her first child and

22   when family planning officials discovered she was pregnant

23   with a second child, they “demanded” that she have an abortion

                                              3
1    and took her to an operating room where she underwent the

2    procedure.     But Sun testified that family planning officers

3    restrained her while a nurse implanted her IUD, and a family

4    planning officer held her down during her abortion.                     The IJ

5    was not compelled to accept Sun’s explanation that an attorney

6    prepared the statement as it failed to account for the

7    omission of the allegations of physical force, particularly

8    as the IJ had explicitly requested a more detailed written

9    statement.    See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

10   2005)(“A petitioner must do more than offer a plausible

11   explanation    for    h[er]      inconsistent     statements      to    secure

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

13   would be compelled to credit h[er] testimony.” (internal

14   quotation marks omitted)).

15         Similarly, Sun’s written statements failed to mention

16   her employment at a state-owned factory, much less any adverse

17   workplace    repercussions       stemming     from     her    abortion.      In

18   contrast, Sun testified that after her abortion, her salary

19   was   reduced,       and   she     was      targeted    for     disciplinary

20   infractions.      The      IJ   was   not    required    to    accept     Sun’s

21   explanation that she did not know to include these facts and

22   was entitled to rely on these omissions as they were direct

23   consequences of her violation of the family planning policy

                                           4
1    that a credible petitioner would be expected to disclose under

2    the circumstances.       See id; Hong Fei Gao, 891 F.3d at 78–79.

3        The IJ also reasonably concluded that aspects of Sun’s

4    testimony    were    implausible    and     more    consistent      with    a

5    voluntary    abortion,    given    that   she      testified   to    lesser

6    restrictions—birth control pills that she voluntarily ceased

7    using   without     consequence    rather    than     an   IUD—after       the

8    abortion.    See 8 U.S.C. § 1158(b)(1)(B)(iii); see Siewe v.

9    Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007) (“[S]peculation

10   that inheres in inference is not ‘bald’ if the inference is

11   made available to the factfinder by record facts . . . in the

12   light of common sense and ordinary experience.”).                   Nor did

13   the IJ err in relying on Sun’s three voluntary returns to

14   China prior to seeking asylum in the United States, as

15   undermining Sun’s fear of future harm.              See Kone v. Holder,

16   596 F.3d 141, 150–51 (2d Cir. 2010) (holding that while

17   “return trips alone are insufficient to establish lack of

18   credibility,” an IJ may consider them in connection with other

19   findings).

20       The IJ also reasonably relied on Sun’s lack of reliable

21   corroboration.      “An applicant’s failure to corroborate his

22   or her testimony may bear on credibility, because the absence

23   of corroboration in general makes an applicant unable to

                                        5
1    rehabilitate testimony that has already been called into

2    question.”        Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.

3    2007).     As the IJ found, Sun had no employment or medical

4    records to substantiate her claim.           See Chuilu Liu v. Holder,

5    575 F.3d 193, 198 (2d Cir. 2009) (“[T]he alien bears the

6    ultimate burden of introducing [corroborating] evidence.”).

7    The IJ did not err in declining to credit the letter from

8    Sun’s mother as it did not mention the IUD or workplace issues

9    or give any detail about the abortion, and it was from an

10   interested witness not subject to cross-examination.                      See

11   Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring

12   to agency’s decision to afford little weight to spouse’s

13   letter     from    China    because   it   was    unsworn    and   from   an

14   interested witness); Matter of H-L-H- & Z-Y-Z-, 25 I. & N.

15   Dec. 209, 215 (B.I.A. 2010) (finding that letters from alien’s

16   friends    and     family   were   insufficient     support    for   claims

17   because they were from interested witnesses not subject to

18   cross-examination), overruled on other grounds by Hui Lin

19   Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012).

20        Given the variance among Sun’s written statements and

21   testimony, the implausible aspects of her claim, her multiple

22   returns to China, and the lack of corroboration, the “totality

23   of   the    circumstances”      supports    the    adverse    credibility

                                           6
1    determination.    See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

2    Lin, 534 F.3d at 167.    That determination is dispositive of

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

4    three claims are based on the same factual predicate.      See

5    Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

6        For the foregoing reasons, the petition for review is

7    DENIED.    As we have completed our review, any stay of removal

8    that the Court previously granted in this petition is VACATED,

9    and any pending motion for a stay of removal in this petition

10   is DISMISSED as moot.    Any pending request for oral argument

11   in this petition is DENIED in accordance with Federal Rule of

12   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

13   34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe,
16                                 Clerk of Court
17




                                    7
