     15-1840
     Li v. Lynch
                                                                                       BIA
                                                                               Van Wyke, IJ
                                                                               A089 225 043

                        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   29th day of November, two thousand sixteen.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            DENNY CHIN,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   TIAN DI LI,
14            Petitioner,
15
16                 v.                                                15-1840
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Aminat Sabak (Yevgeny Samokhleb, on
24                                      the brief), Law Offices of Yu &
25                                      Associates, PLLC, New York, N.Y.
26
27   FOR RESPONDENT:                    Benjamin C. Mizer, Principal Deputy
28                                      Assistant Attorney General; Margaret
29                                      Kuehne Taylor, Senior Litigation
30                                      Counsel; Kate D. Balaban, Trial
31                                      Attorney, Office of Immigration
1                                 Litigation, United States Department
2                                 of Justice, Washington, D.C.
3
4         UPON DUE CONSIDERATION of this petition for review of a Board

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

6    ADJUDGED, AND DECREED that the petition for review is DENIED.

7         Petitioner Tian Di Li, a native and citizen of China, seeks

8    review of a May 19, 2015, decision of the BIA, affirming an April

9    25, 2013, decision of an Immigration Judge (“IJ”) denying Li’s

10   application for asylum, withholding of removal, and relief under

11   the Convention Against Torture (“CAT”). In re Tian Di Li, No.

12   A089 225 043 (B.I.A. May 19, 2015), aff’g No. A089 225 043 (Immig.

13   Ct. N.Y. City Apr. 25, 2013). We assume the parties’ familiarity

14   with the underlying facts and procedural history in this case.

15        Under the circumstances of this case, we have reviewed both

16   the IJ’s and the BIA’s decisions. Yun-Zui Guan v. Gonzales, 432

17   F.3d 391, 394 (2d Cir. 2005). The applicable standards of review

18   are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

19   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

20        Asylum applications like Li’s are governed by the REAL ID

21   Act, which provides that an agency may, “[c]onsidering the

22   totality of the circumstances,” base a credibility finding on

23   an applicant’s “demeanor, candor, or responsiveness,” the

24   plausibility   of   his   account,   and   inconsistencies   in   his

                                      2
 1   statements and other record evidence “without regard to whether”

2    those inconsistencies go “to the heart of the applicant’s claim.”

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

 4   “We defer . . . to an IJ’s credibility determination unless .

 5   . . it is plain that no reasonable fact-finder could make such

 6   an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.

 7   Further, “[a] petitioner must do more than offer a plausible

 8   explanation for his inconsistent statements to secure relief;

 9   he must demonstrate that a reasonable fact-finder would be

10   compelled to credit his testimony.”    Majidi v. Gonzales, 430

11   F.3d 77, 80 (2d Cir. 2005) (internal quotation marks omitted).

12   Substantial evidence supports the agency’s determination that

13   Li was not credible.

14        The agency reasonably based its credibility determination

15   in small part on inconsistencies between Li’s testimony and tax

16   returns that report where he has lived since arriving in the

17   United States.   See Xiu Xia Lin, 534 F.3d at 167 (“[A]n IJ may

18   rely on any inconsistency or omission in making an adverse

19   credibility determination as long as the ‘totality of the

20   circumstances’ establishes that an asylum applicant is not

21   credible.”); Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006)

22   (“[E]ven where an IJ relies on discrepancies or lacunae that,


                                    3
1    if taken separately, concern matters ‘collateral or ancillary

2    to the claim,’ the cumulative effect may nevertheless be deemed

3    consequential by the fact-finder.” (citation omitted)). Li

4    testified that he lived in New York since arriving in the United

5    States and that he attended church in New York once a week, and

6    he submitted letters from his New York church stating that Li

7    attends Sunday masses when his work permits. However, one of

8    Li’s tax forms provides an Illinois residence.      The agency

9    reasonably rejected Li’s explanation that he sometimes helped

10   his sister in Chicago with her work because it did not explain

11   why he listed an Illinois residence on his tax return. See

12   Majidi, 430 F.3d at 80. The agency also reasonably found this

13   inconsistency material because it called into question Li’s

14   claim of weekly church attendance in New York.   See Xiu Xia Lin,

15   534 F.3d at 167; Tu Lin, 446 F.3d at 402.

16       The agency reasonably relied further on Li’s failure to

17   corroborate his practice of Christianity.        “An applicant’s

18   failure to corroborate his . . . testimony may bear on

19   credibility, because the absence of corroboration in general

20   makes an applicant unable to rehabilitate testimony that has

21   already been called into question” or is suspicious. Biao Yang

22   v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Here, the agency


                                    4
1    reasonably found Li’s credibility undermined by his inability

2    to provide a witness (either in person or by phone) to corroborate

3    his practice of Christianity.       The agency did not err in

4    rejecting Li’s explanations for why he could not provide such

5    a witness—they were busy and had to work—because they were not

6    sufficiently compelling.    See Majidi, 430 F.3d at 80; cf. 8

7    U.S.C. § 1254(b)(4) (“No court shall reverse a determination

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

9    corroborating evidence . . . [unless] a reasonable trier of fact

10   is compelled to conclude that such corroborating evidence is

11   unavailable.”).

12        Additionally, the agency reasonably relied on

13   inconsistency between Li’s claim of past persecution and the

14   country conditions evidence. See Xiu Xia Lin, 534 F.3d at

15   166-67. Li testified that he was detained for 17 days with 10

16   fellow parishioners, interrogated, and beaten after police

17   raided his small, house church gathering in Fujian Province.

18   However, the agency reasonably concluded that the few instances

19   of similar mistreatment in Fujian Province documented in the

20   country conditions evidence related to house church leaders.

21   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342

22   (2d Cir. 2006) (holding that the weight accorded to State


                                     5
1    Department reports lies largely within the discretion of the

2    agency). The agency did not err by placing “excessive reliance”

3    on the State Department 2010 International Religious Freedom

4    Report because it also considered “contrary or countervailing

5    evidence . . . as well as the particular circumstances of the

6    [Li]’s case.” See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d

7    391, 403-04 (2d Cir. 2005) (internal quotation marks omitted).

8    The IJ explained that he credited the State Department report

9    because Li’s testimony about his past harm was unpersuasive and

10   he failed to produce a witness to corroborate his practice of

11   Christianity in China or the United States.

12       However, in affirming the credibility determination we

13   decline to rely on the IJ’s demeanor finding. “[D]emeanor is

14   paradigmatically the sort of evidence that a fact-finder is best

15   positioned to evaluate,” Li Zu Guan v. INS, 453 F.3d 129, 140

16   (2d Cir. 2006), and we therefore give “particular deference to

17   credibility determinations that are based on the adjudicator’s

18   observation of the applicant’s demeanor,” Jin Chen v. U.S. Dep’t

19   of Justice, 426 F.3d 104, 113 (2d Cir. 2005). We have observed,

20   however, that we “can be still more confident in our review of

21   observations about an applicant’s demeanor where . . . they are

22   supported by specific examples of inconsistent testimony.” Li


                                    6
1    Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).

2    Although the IJ found that Li’s testimony often “mimicked” his

3    asylum application, and that Li struggled to recount details

4    of his claim that were not stated explicitly therein, the IJ

5    did not support this observation with examples of specific

6    testimony or citations to the record. The weight placed by the

7    IJ on the demeanor finding is also unclear because he appears

8    to have faulted the Government for failing to elicit further

9    details on cross-examination. Even assuming that this finding

10   was erroneous, however, we can confidently predict that the

11   agency would adhere to its decision because the remainder of

12   the credibility determination is supported by substantial

13   evidence. See Xiao Ji Chen, 471 F.3d at 338-39 (holding that

14   remand is futile when the Court can “confidently predict” that

15   the agency would reach the same decision absent any errors).

16        Given the inconsistency and corroboration findings, the

17   totality of the circumstances supports the adverse credibility

18   determination.    See Xiu Xia Lin, 534 F.3d at 167.           The

19   credibility determination is dispositive of Li’s claims for

20   asylum, withholding of removal, and CAT relief because all claims

21   relied on the same factual predicate. See Paul v. Gonzales, 444

22   F.3d 148, 156-57 (2d Cir. 2006).


                                     7
1        For the foregoing reasons, the petition for review is

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

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

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

5    is DISMISSED as moot. Any pending request for oral argument in

6    this petition is DENIED in accordance with Federal Rule of

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

8    34.1(b).

 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe, Clerk




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