     18-18
     He v. Barr
                                                                                  BIA
                                                                            Loprest, IJ
                                                                          A206 561 595
                       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 November, two thousand
 5   nineteen.
 6
 7   PRESENT:
 8            JOSÉ A. CABRANES,
 9            RAYMOND J. LOHIER, JR.,
10            MICHAEL H. PARK,
11                 Circuit Judges.
12   _____________________________________
13   SHAOJIAN HE,
14            Petitioner,
15
16                v.                                             18-18
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Ting Geng, Law Office of Xin
24                                    Miao, LLC, Flushing, NY.
25
26   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
27                                    Attorney General; Holly M. Smith,
28                                    Senior Litigation Counsel; David
29                                    Kim, Trial Attorney, Office of
30                                    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 Shaojian He, a native and citizen of China,

6    seeks review of a December 6, 2017, decision of the BIA

7    affirming an April 7, 2017, decision of an Immigration Judge

8    (“IJ”) denying He’s application for asylum, withholding of

9    removal, and relief under the Convention Against Torture

10   (“CAT”), and ordering He removed.   In re Shaojian He, No. A

11   206 561 595 (B.I.A. Dec. 6, 2017), aff’g No. A 206 561 595

12   (Immig. Ct. N.Y. City Apr. 7, 2017).   We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       We have reviewed both the IJ’s and BIA’s decisions

16   denying relief on credibility grounds.      Hong Fei Gao v.

17   Sessions, 891 F.3d 67, 76 (2d Cir. 2018).     The applicable

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

19   § 1252(b)(4)(B).

20       “Considering the totality of the circumstances, and all

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

22   determination on the demeanor, candor, or responsiveness of

23   the applicant or witness, 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    [and] the internal consistency of each such statement . . .

4    without regard to whether an inconsistency, inaccuracy, or

5    falsehood goes to the heart of the applicant’s claim . . . .”

6    8 U.S.C. § 1158(b)(1)(B)(iii).             “We defer . . . to an IJ’s

7    credibility determination unless . . . it is plain that no

8    reasonable fact-finder could make such an adverse credibility

9    ruling.”    Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

10   2008) (per curiam); accord Hong Fei Gao, 891 F.3d at 76.

11   Substantial evidence supports the agency’s determination that

12   He was not credible as to his claims that Chinese police

13   arrested, beat, and detained him for attending an underground

14   church     service,    and     that       he   continues     to     practice

15   Christianity such that he has a fear of future persecution.

16          The agency reasonably relied on inconsistencies among

17   He’s     testimony,    written        application,     and    documentary

18   evidence.    See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

19   534 F.3d at 163–64.     He’s testimony was inconsistent with his

20   own application and corroborating evidence regarding the date

21   of   his   alleged    arrest   in     China,    and   how    long   another

22   practitioner was detained by the Chinese local police.                  The

23   IJ was not compelled to credit He’s explanation that a long
                                           3
1    period of time had passed since the events, particularly when

2    He   gave   correct    answers     when    prompted.   See    Majidi    v.

3    Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must

4    do   more    than     offer   a    plausible    explanation    for     his

5    inconsistent statements to secure relief; he must demonstrate

6    that a reasonable fact-finder would be compelled to credit

7    his testimony.” (internal quotations omitted)).           In addition,

8    the agency reasonably relied on discrepancies regarding the

9    location of He’s church in the United States and the length

10   of the lapse in his church attendance.                 Although these

11   inconsistencies are minor, the agency did not err in relying

12   upon their cumulative effect to render an adverse credibility

13   determination.      See 8 U.S.C. § 1158(b)(1)(B)(iii); Tu Lin v.

14   Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) (emphasizing that

15   “even where an IJ relies on discrepancies or lacunae that, if

16   taken separately, concern matters collateral or ancillary to

17   the claim, . . . the cumulative effect may nevertheless be

18   deemed      consequential     by     the     fact-finder”)    (internal

19   quotations and citation omitted).

20        Furthermore, the IJ’s adverse credibility determination

21   is    bolstered       by   additional       findings   regarding       the

22   plausibility of He’s claim, his demeanor, and his lack of

23   reliable corroboration.       The IJ’s implausibility findings are
                                          4
1    sufficiently tethered to the record: He testified that he

2    came to the United States to practice Christianity, but

3    conceded that he did not attend church for ten months after

4    his arrival and testified that he did not tell his family

5    members in the United States that he was Christian or that he

6    fled China because of religious persecution despite the fact

7    that he lived with them while he was attending church in the

8    United States.      See Wensheng Yan v. Mukasey, 509 F.3d 63, 67

9    (2d Cir. 2007) (per curiam) (stating that we will not disturb

10   an inherent plausibility finding so long as the IJ’s finding

11   is “tethered to record evidence, and there is nothing else in

12   the record from which a firm conviction of error could

13   properly be derived”).

14       We also defer to the IJ’s demeanor finding, particularly

15   where, as here, the record reflects that He had difficulty

16   responding     to    questions   about   the     inconsistent       and

17   implausible aspects of his testimony.          See Majidi, 430 F.3d

18   at 81 n.1 (recognizing that particular deference is given to

19   the trier of fact’s assessment of demeanor); Li Hua Lin v.

20   U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We

21   can be still more confident in our review of observations

22   about   an   applicant’s   demeanor   where,    as   here,   they   are

23   supported by specific examples of inconsistent testimony.”).
                                      5
1           Finally, having questioned He’s credibility, the agency

2    reasonably     relied       on   his    failure      to   submit    reliable

3    corroborating evidence.          See Biao Yang v. Gonzales, 496 F.3d

4    268,    273   (2d    Cir.      2007)    (“An      applicant’s    failure   to

5    corroborate his or her testimony may bear on credibility,

6    because the absence of corroboration in general makes an

7    applicant unable to rehabilitate testimony that has already

8    been called into question.”).               The record shows that the IJ

9    considered the documentary evidence but found it insufficient

10   to rehabilitate He’s testimony.              The IJ was entitled to give

11   little weight to letters from He’s father and friend in China.

12   See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Y.C. v. Holder,

13   741 F.3d 324, 332, 334 (2d Cir. 2013) (holding that “[w]e

14   generally defer to the agency’s evaluation of the weight to

15   be     afforded     an   applicant’s        documentary       evidence”    and

16   upholding the BIA’s decision not to credit a letter from the

17   applicant’s spouse in China).                  And, as noted above, the

18   evidence of He’s church attendance was inconsistent with his

19   testimony.

20          Taken together, the inconsistencies, implausibility and

21   demeanor findings, and lack of reliable corroboration provide

22   substantial         evidence      for       the     adverse      credibility

23   determination.       That determination is dispositive of asylum,
                                             6
1   withholding of removal, and CAT relief because all three

2   claims are based on the same factual predicate.   See Paul v.

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

4       For the foregoing reasons, the petition for review is

5   DENIED.   All pending motions and applications are DENIED and

6   stays VACATED.

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




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