     18-469
     Li v. Barr
                                                                                  BIA
                                                                             Wright, IJ
                                                                          A206 570 449

                       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 10th day of April, two thousand twenty.
 5
 6   PRESENT:
 7            JOSÉ A. CABARANES,
 8            SUSAN L. CARNEY,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   MENGJIE LI,
14            Petitioner,
15
16                v.                                             18-469
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Wei Gu, Esq., Albertson, NY.
24
25   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
26                                    Attorney General; John S. Hogan,
27                                    Assistant Director; Todd J.
28                                    Cochran, Trial Attorney, Office of
29                                    Immigration Litigation, United
30                                    States Department of Justice,
31                                    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   Mengjie Li,       a native and citizen of             the

 6   People’s Republic of China, seeks review of a January 24,

 7   2018 decision of the BIA affirming a June 1, 2017 decision of

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

 9   asylum,    withholding      of   removal,      and     relief     under   the

10   Convention Against Torture (“CAT”).                 In re Mengjie Li, No.

11   A206 570 449 (B.I.A. Jan. 24, 2018), aff’g No. A206 570 449

12   (Immig. Ct. N.Y. City June 1, 2017).                We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15          We have reviewed the decisions of both the IJ and the

16   BIA.    See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d

17   Cir. 2005).      The standards of review are well established.

18   See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891

19   F.3d 67, 76 (2d Cir. 2018).        “Considering the totality of the

20   circumstances, and all relevant factors, a trier of fact may

21   base a credibility determination on the demeanor, candor, or

22   responsiveness of the applicant . . . , the consistency

23   between    the   applicant’s     or       witness’s     written    and    oral
                                           2
 1   statements . . . , the internal consistency of each such

 2   statement, the consistency of such statements with other

 3   evidence of record . . . , and any inaccuracies or falsehoods

 4   in    such    statements,        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.     Under the totality of the circumstances,

13   substantial     evidence     supports        the   adverse       credibility

14   determination    given     the    demeanor     finding,        Li’s   lack   of

15   familiarity with his documentary evidence, and Li’s failure

16   to provide reliable corroborating documents.

17         The agency did not err in relying on Li’s initial lack

18   of    responsiveness.        An       IJ     may   base    a     credibility

19   determination on the “demeanor, candor, or responsiveness of

20   the applicant.”     8 U.S.C. § 1158(b)(1)(B)(iii).                    “We give

21   particular deference to credibility determinations that are

22   based on the adjudicator’s observation of the applicant’s

23   demeanor, in recognition of the fact that the IJ’s ability to
                                           3
 1   observe the witness’s demeanor places her in the best position

 2   to    evaluate    whether     apparent       problems     in     the       witness’s

 3   testimony suggest a lack of credibility or, rather, can be

 4   attributed       to   an     innocent        cause     such     as     difficulty

 5   understanding the question.”                 Jin Chen v. U.S. Dep’t of

 6   Justice, 426 F.3d 104, 113 (2d Cir. 2005).                             The record

 7   supports the IJ’s conclusion that Li was not responsive when

8    asked his reason for being in the United States, as he had to

 9   be asked four times before he provided a reason relating to

10   his alleged persecution.

11         The IJ also reasonably relied on Li’s lack of familiarity

12   with his own evidence and the resulting inconsistency between

13   his     testimony      and      the         record.            See     8     U.S.C.

14   § 1158(b)(1)(B)(iii).         Li testified that he had no documents

15   related to his arrest, and when confronted with a document he

16   submitted from the Public Security Bureau describing his

17   arrest and punishment, he stated he was unaware that it had

18   been submitted.       That document contradicted Li’s assertion

19   that he had not received any documents from the government

20   related to his arrest.

21         In addition to these problems with Li’s testimony and

22   evidence, the agency relied on the fact that Li testified to

23   details   —   a   police     visit    to      his     school    and    a     two-day
                                             4
 1   hospitalization — that were not included in his application

 2   or a letter from his parents.                  But while it could be argued

 3   that the agency overemphasized these omissions, which were

 4   not inconsistent with Li’s oral statements, Hong Fei Gao, 891

 5   F.3d     at    78–81,      the    agency       reasonably       questioned       Li’s

 6   credibility based on his unresponsiveness and inconsistency

 7   regarding the documentary evidence of his arrest and Li’s

 8   failure       to     rehabilitate      his          testimony    with      reliable

 9   corroborating evidence.

10          “An    applicant’s        failure       to    corroborate     his    or   her

11   testimony may bear on credibility, because the absence of

12   corroboration         in   general    makes         an   applicant      unable    to

13   rehabilitate testimony that has already been called into

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

15   2007).       First, Li did not corroborate the basis of his claim

16   because he did not provide a copy of the article he allegedly

17   wrote or proof of the existence of the website he published

18   the article on.            Second, the IJ was not required to give

19   significant weight to the letter from Li’s parents because it

20   did not confirm his alleged two-day hospitalization and it

21   was from interested parties who were unavailable for cross-

22   examination.         See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d

23   Cir. 2013) (explaining that “[w]e generally defer to the
                                                5
 1   agency’s    evaluation   of     the       weight    to    be   afforded    an

 2   applicant’s    documentary      evidence”     and    deferring     to     IJ’s

 3   decision to afford little weight to letter from spouse in

 4   China).    Third, the IJ did not err in declining to give weight

 5   to the document from the Public Security Bureau, given that

 6   Li testified that he had never received such a document and

 7   had not been aware that it was submitted in support of his

 8   application.    Last, while Li’s hospital record stated that

 9   he was treated after being beaten and detained by the police

10   in 2011, the IJ was not required to afford it significant

11   weight because it did not confirm Li’s testimony that he spent

12   two nights at the hospital.        See id. at 332.

13       Accordingly, given the demeanor finding, Li’s lack of

14   familiarity with his documentary evidence, and the absence of

15   reliable corroboration, substantial evidence supports the

16   agency’s adverse credibility determination.                    See 8 U.S.C.

17   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; Biao Yang,

18   496 F.3d at 273.         That    determination           is dispositive of

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

20   three claims were based on the same factual predicate.                     See

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

22

23
                                           6
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




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