     14-1949
     Li v. Lynch
                                                                                       BIA
                                                                                 Zagzoug, IJ
                                                                               A200 753 606

                        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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   11th day of May, two thousand sixteen.
 5
 6   PRESENT:
 7            ROSEMARY S. POOLER,
 8            ROBERT D. SACK,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   GENGMIAN LI,
14            Petitioner,
15
16                 v.                                                14-1949
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     James A. Lombardi, New York, New
25                                       York.
26
27   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
28                                       Assistant Attorney General; John S.
1                               Hogan, Assistant Director; Matthew
2                               A. Spurlock, Trial Attorney, Office
3                               of Immigration Litigation, United
4                               States Department of Justice,
5                               Washington, D.C.
6
7        UPON DUE CONSIDERATION of this petition for review of a

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

9    ORDERED, ADJUDGED, AND DECREED that the petition for review is

10   DENIED.

11       Petitioner Gengmian Li, a native and citizen of the

12   People’s Republic of China, seeks review of a May 28, 2014,

13   decision of the BIA affirming a March 15, 2012, decision of an

14   Immigration Judge (“IJ”) denying Li’s application for asylum,

15   withholding of removal, and relief under the Convention Against

16   Torture (“CAT”).   In re Gengmian Li, No. A200 753 606 (B.I.A.

17   May 28, 2014), aff’g No. A200 753 606 (Immig. Ct. N.Y. City Mar.

18   15, 2012).    We assume the parties’ familiarity with the

19   underlying facts and procedural history in this case.

20       Under the circumstances of this case, we have reviewed the

21   IJ’s decision as modified by the BIA, i.e., minus the basis for

22   denying relief that the BIA declined to consider (the IJ’s

23   burden finding as to CAT relief).    See Xue Hong Yang v. U.S.

24   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).         The

25   applicable standards of review are well established.        See


                                    2
1    8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534

2    F.3d 162, 165-66 (2d Cir. 2008).

3        The     agency   may,   “[c]onsidering   the    totality   of   the

4    circumstances, . . . base a credibility determination on the

5    demeanor, candor, or responsiveness of the applicant,” the

6    plausibility of the applicant’s account, and the consistency

7    in the applicant’s statements “without regard to whether an

8    inconsistency . . . goes to the heart of the applicant’s claim.”

9    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

10   Substantial evidence supports the agency’s determination that

11   Li was not credible and failed to adequately corroborate her

12   claims.

13       Li sought asylum and related relief based on her alleged

14   forced abortion under China’s family planning policy in 1990

15   and her practice of Christianity.     In finding her not credible,

16   the IJ reasonably relied on Li’s demeanor, noting that her

17   testimony      became       evasive    and         unresponsive      on

18   cross-examination.      See 8 U.S.C. § 1158(b)(1)(B)(iii); see

19   also Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).

20   That finding is supported by the record.

21       Having questioned Li’s credibility, the agency reasonably

22   relied further on her failure to submit corroborating evidence


                                       3
1    sufficient to rehabilitate her testimony or independently

2    satisfy her burden of proof.        See Biao Yang v. Gonzales, 496

3    F.3d 268, 273 (2d Cir. 2007); Diallo v. INS, 232 F.3d 279, 285

4    (2d Cir. 2000).      The agency reasonably declined to credit

5    letters from Li’s husband, pastor, and fellow church member in

6    China because the letters were unsworn and prepared for

7    litigation,   and    the    authors     were   not    available   for

8    cross-examination.     See Y.C. v. Holder, 741 F.3d 324, 332, 334

9    (2d Cir. 2013).

10       Moreover, although Li claimed to have had access to

11   corroborating evidence that was contemporaneous with her

12   alleged   forced    abortion,   family    planning    checkups,    and

13   religious   practice   in   China     (books   and   other   religious

14   materials), she did not submit that evidence before the IJ,

15   claiming either that it was lost or that it remained with her

16   husband in China.      See Chuilu Liu v. Holder, 575 F.3d 193,

17   196-97 (2d Cir. 2009) (recognizing that an IJ may require

18   corroborating evidence when it is reasonably available and it

19   would be expected under the circumstances).          In addition, the

20   agency did not err in declining to credit an unauthenticated

21   fine receipt as corroboration of Lin’s purported detention.

22   The agency correctly acknowledged that an official document may


                                      4
1    be authenticated by means other than those described in the

2    agency’s regulations at 8 C.F.R. § 1287.6, and reasonably

3    determined that Li’s testimony, which was inconsistent as to

4    whether her husband signed the fine receipt, was insufficient

5    to authenticate that document.      See Cao He Lin v. U.S. Dep’t

 6   of Justice, 428 F.3d 391, 404-05 (2d Cir. 2005); see also Qin

 7   Wen Zheng v. Gonzales, 500 F.3d 143, 148 (2d Cir. 2007)

 8   (providing—in the context of a motion to reopen—that the agency

 9   may decline to credit the authenticity of a government-issued

10   document based on legitimate credibility concerns).             The

11   agency also reasonably relied on Li’s failure to provide

12   corroborating testimony from one of the approximately 1,000

13   congregants at her church in the United States after she learned

14   more than one month prior to her merits hearing that her intended

15   witness could not attend.   See Chuilu Liu, 575 F.3d at 196-99.

16       The   agency   also   reasonably   found   that   the   country

17   conditions evidence did not corroborate or independently

18   establish a well-founded fear of persecution.         See 8 C.F.R.

19   § 1208.13(b)(2); see also Ramsameachire v. Ashcroft, 357 F.3d

20   169, 178 (2d Cir. 2004).     The 2009 U.S. Department of State

21   International Religious Freedom Report (“IRF Report”) provides

22   that there are 50 to 70 million Christians practicing in


                                     5
1    unregistered churches in China and that family and friends are

2    permitted to meet in homes for worship.         As the agency

3    acknowledged, there are reports that the Chinese government

4    arrested, harassed, and restricted leaders and members of

5    certain groups (particularly Muslims in the Xinjiang Uighur

6    Autonomous Region and Buddhists in Tibetan areas).     However,

7    the extent of government interference depended largely on

8    locale, and most unregistered Christian groups were openly

9    active.

10       Ultimately, substantial evidence supports the agency’s

11   finding that Li’s testimony lacked credibility and that her

12   evidence was insufficient to rehabilitate her testimony or

13   independently satisfy her burden of proof.    See Xiu Xia Lin,

14   534 F.3d at 165-66; Chuilu Liu, 575 F.3d at 198-99.       Those

15   findings are dispositive of asylum and withholding of removal

16   based on both her claim of past persecution and her fear of

17   future persecution.   See Paul v. Gonzales, 444 F.3d 148, 156-57

18   (2d Cir. 2006).

19       For the foregoing reasons, the petition for review is

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

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

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


                                    6
1   is DISMISSED as moot.   Any pending request for oral argument

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

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

4   34.1(b).

5                               FOR THE COURT:
6                               Catherine O=Hagan Wolfe, Clerk




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