     15-2368
     Shen v. Lynch
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A200 173 943
                          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   31st day of August, two thousand sixteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            DENNIS JACOBS,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   SONGSHU SHEN,
14            Petitioner,
15
16                   v.                                              15-2368
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     David A. Bredin, Flushing, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Anthony
27                                       P.   Nicastro,   Acting   Assistant
28                                       Director; Vanessa M. Otero, Trial
29                                       Attorney, Office of Immigration
30                                       Litigation,      United      States
31                                       Department of Justice, Washington,
32                                       D.C.
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 is

4    DENIED.

5        Petitioner Songshu Shen, a native and citizen of the

6    People’s Republic of China, seeks review of a June 26, 2015,

7    decision of the BIA, affirming a November 20, 2013, decision

8    of an Immigration Judge (“IJ”) denying Shen’s application for

9    asylum, withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).      In re Songshu Shen, No. A200 173 943

11   (B.I.A. June 26, 2015), aff’g No. A200 173 943 (Immig. Ct. N.Y.

12   City Nov. 20, 2013).       We assume the parties’ familiarity with

13   the underlying facts and procedural history in this case.

14       Under the circumstances of this case, we review the IJ’s

15   decision as modified by the BIA.       See Xue Hong Yang v. U.S. Dep’t

16   of Justice, 426 F.3d 520, 522 (2d Cir. 2005).         The applicable

17   standards   of    review     are   well    established.      8 U.S.C.

18   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

19   (2d Cir. 2008).

20       For asylum applications like Shen’s, governed by the REAL

21   ID Act, the agency may, “[c]onsidering the totality of the
                                        2
1    circumstances,”   base   a   credibility    finding   on   an   asylum

2    applicant’s   “demeanor,     candor,   or   responsiveness,”      and

3    inconsistencies in her or her witness’s statements, “without

4    regard to whether” those inconsistencies go “to the heart of

5    the applicant’s claim.”      8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

6    Xia Lin, 534 F.3d at 163-64.         “We defer . . . to an IJ’s

7    credibility determination unless, from the totality of the

8    circumstances, it is plain that no reasonable fact-finder could

9    make such an adverse credibility ruling.”     Xiu Xia Lin, 534 F.3d

10   at 167.   As discussed below, substantial evidence supports the

11   adverse credibility determination.

12       The agency reasonably rested its adverse credibility

13   determination on omissions from Shen’s application concerning

14   the only incident of persecution she alleged.         Id. at 166-67

15   & n.3 (“An inconsistency and an omission are . . . functionally

16   equivalent” for credibility purposes).       Shen testified that a

17   police officer smashed a book on her head and five other inmates

18   beat her while detained.        When asked why her application

19   omitted these details, Shen responded that she considered being

20   hit with the book less serious than what she had included in

21   her application and that being beaten by the other inmates was
                                      3
1    too “horrible for [her] to even recall.”         The agency, however,

2    was not required to credit Shen’s explanations.          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 inconsistent

5    statements to secure relief; he must demonstrate that a

6    reasonable   fact-finder   would       be   compelled   to   credit   his

7    testimony.” (internal quotation marks and citation omitted)).

8        The agency also did not err in concluding that Shen’s

9    corroborating evidence was insufficient to rehabilitate her

10   credibility.   See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

11   Cir. 2007) (recognizing that “[a]n applicant’s failure to

12   corroborate his . . . testimony may bear on credibility,

13   because the absence of corroboration in general makes an

14   applicant unable to rehabilitate testimony that has already

15   been called into question” or is viewed as suspicious).               The

16   agency reasonably gave diminished weight to Shen’s mother’s

17   letter: it was inconsistent with Shen’s testimony concerning

18   when Shen started attending church in China, not notarized, and

19   from an interested witness not subject to cross examination.

20   See Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A.

21   2010), rev’d on other grounds by Hui Lin Huang v. Holder, 677
                                        4
1    F.3d 130 (2d Cir. 2012); see also Y.C. v. Holder, 741 F.3d 324,

2    334    (2d   Cir.     2013).      The   agency     also   reasonably   found

3    suspicious the absence of any testimony or statement from Shen’s

4    husband.      See Biao Yang, 496 F.3d at 273.                  Although Shen

5    explained that her husband could not miss work and that she

6    believed only persons with legal status could testify, this did

7    not    account      for   the    absence     of   a   statement.       Cf.   8

8    U.S.C. § 1252(b)(4) (“No court shall reverse a determination

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

10   corroborating evidence . . . [unless] a reasonable trier of

11   fact is compelled to conclude that such corroborating evidence

12   is unavailable.”).

13          Given the foregoing omissions and Shen’s insufficient

14   corroborating evidence, the totality of the circumstances

15   supports the credibility ruling.             Xiu Xia Lin, 534 F.3d at 167.

16   The omissions relate to substantial aspects of the sole incident

17   of past alleged persecution.            Because Shen’s claims for relief

18   were    based    on    the     same   factual     predicate,    the   adverse

19   credibility         determination       is      dispositive     of    asylum,

20   withholding of removal, and CAT relief.               Paul v. Gonzales, 444

21   F.3d 148, 156-57 (2d Cir. 2006).
                                             5
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                             FOR THE COURT:
4                             Catherine O’Hagan Wolfe, Clerk




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