     16-3151
     Yuan v. Barr
                                                                                   BIA
                                                                            Schoppert, IJ
                                                                           A205 196 828
                         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 16th day of April, two thousand nineteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            REENA RAGGI,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12   GUISHENG YUAN,
13            Petitioner,
14
15                  v.                                           16-3151
16                                                               NAC
17   WILLIAM P. BARR, UNITED STATES
18   ATTORNEY GENERAL,
19            Respondent.
20   _____________________________________
21
22   FOR PETITIONER:                    Gerald Karikari, New York, NY.
23
24   FOR RESPONDENT:                    Chad A. Readler, Acting
25                                      Assistant Attorney General;
26                                      Jeffery R. Leist, Senior
27                                      Litigation Counsel; Sarah K.
28                                      Pergolizzi, Trial Attorney,
29                                      Office of Immigration
30                                      Litigation, United States
31                                      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 Guisheng Yuan, a native and citizen of China,

6    seeks review of the BIA’s affirmance of an Immigration Judge’s

7    (“IJ’s”) denial of Yuan’s application for asylum, withholding

8    of removal, and relief under the Convention Against Torture

9    (“CAT”).   See In re Guisheng Yuan, No. A205 196 828 (B.I.A.

10   Aug. 15, 2016), aff’g No. A205 196 828 (Immig. Ct. N.Y. City

11   July 13, 2015).

12       Under the circumstances of this case, we have reviewed

13   both the IJ’s and the BIA’s decisions “for the sake of

14   completeness,” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

15   524, 528 (2d Cir. 2006), applying well established standards

16   of review,   see 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.

17   Sessions, 891 F.3d 67, 76 (2d Cir. 2018). In so doing, we

18   assume the parties’ familiarity with the underlying facts and

19   procedural history of this case, which we reference only as

20   necessary to explain our decision to deny the petition.

21       For an application such as Yuan’s, governed by the REAL

22   ID Act of 2005, the agency may “[c]onsider the totality of


                                   2
1    the circumstances,” and base a credibility finding on an

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

3    plausibility of his account, and inconsistencies in his or

4    his witness’s statements, “without regard to whether” they go

5    “to     the    heart      of      [his]         claim.”          8 U.S.C.

6    § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d

7    162, 163-64, 166-67 (2d Cir. 2008).               “[E]ven where an IJ

8    relies on discrepancies or lacunae that, if taken separately,

9    concern matters collateral or ancillary to the claim, the

10   cumulative effect may nevertheless be deemed consequential by

11   the fact-finder.”      Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d

12   Cir. 2006) (internal quotation marks and citation omitted);

13   accord Hong Fei Gao, 891 F.3d at 77.             “We defer . . . to an

14   IJ’s credibility determination unless . . . it is plain that

15   no    reasonable   fact-finder     could    make     such   an   adverse

16   credibility ruling.”      Xiu Xia Lin, 534 F.3d at 167; accord

17   Hong Fei Gao, 891 F.3d at 76.          Applying these standards, we

18   conclude that substantial evidence supports the agency’s

19   adverse credibility determination here.

20         First, the agency reasonably relied on Yuan’s omission

21   from his asylum application of his sisters’ problems in China

22   on account of their religion since the application explicitly


                                        3
1    requested that information. See Hong Fei Gao, 891 F.3d at 78

2    (“[T]he probative value of a witness’s . . . silence on

3    particular facts depends on whether those facts are ones the

4    witness would reasonably have been expected to disclose.”).

5    Because      the   application    form    specifically   asked    whether

6    family members experienced harm or mistreatment as members of

7    religious organizations, the agency did not err by rejecting

8    Yuan’s explanation that he did not include this information

9    because it was not the basis of his own claim. See Majidi v.

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

11   do    more    than    offer   a   plausible     explanation      for   his

12   inconsistent statements to secure relief; he must demonstrate

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

14   his    testimony.”      (internal        quotation   marks    omitted)).

15   Moreover, as the IJ observed, Yuan’s sisters’ persecution on

16   the same ground on which Yuan claims to have been persecuted

17   would be relevant to establishing that the Chinese government

18   persecutes Christians in Yuan’s home region.

19         Second, the agency reasonably found Yuan’s ignorance of

20   his sisters’ religious practice and any harm they suffered in

21   China implausible, given that Yuan lived with his sisters for

22   most of his life, both sisters now live in the United States,


                                          4
1    and Yuan and his sisters were the only Christians in their

2    family.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Wensheng Yan v.

3    Mukasey, 509 F.3d 63, 66-68 (2d Cir. 2007).

4        Third, the agency’s adverse credibility determination is

5    bolstered by the IJ’s observations of Yuan’s demeanor.              See

6    8 U.S.C. § 1158(b)(1)(B)(iii); Jin Chen v. U.S. Dep’t of

7    Justice, 426 F.3d 104, 113 (2d Cir. 2005).           The IJ’s finding

8    that Yuan’s testimony appeared scripted because his answers

9    were conclusory and lacked detail is supported by the record.

10   See Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 73 (2d Cir. 2004)

11   (recognizing that an IJ “who assesses testimony together with

12   witness demeanor is in the best position to discern, often at

13   a glance,. . . whether a witness . . . [is] attempting

14   truthfully to recount what he recalled of key events or

15   struggling to remember the lines of a carefully crafted

16   ‘script’”), overruled on other grounds by Shi Liang Lin v.

17   U.S. Dep’t of Justice, 494 F3d 296 (2d Cir. 2007).

18       Moreover,     the      agency       reasonably     found   Yuan’s

19   corroborating   evidence    insufficient      to     rehabilitate   his

20   credibility.    See Biao Yang v. Gonzales, 496 F.3d 268, 273

21   (2d Cir. 2007) (“An applicant’s failure to corroborate his or

22   her testimony . . . in general makes an applicant unable to


                                         5
1    rehabilitate testimony that has already been called into

2    question.”).1

3         Finally,   the     IJ   reasonably   declined   to    credit    a

4    certificate from Yuan’s underground church in China, given

5    that it purported to be from an unregistered and secretive

6    organization but was printed on letterhead and contained

7    multiple seals and Yuan’s photograph. Yuan further did not

8    have detailed information on how his friend obtained the

9    letter.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

10   315, 342 (2d Cir. 2006) (observing that the weight accorded

11   to   an   applicant’s   evidence   “lie[s]   largely      within    the

12   discretion of the IJ” (internal quotation marks omitted)).2



     1Yuan did not exhaust a challenge to the IJ’s finding that
     he should have provided statements or testimony from his
     sisters, see Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
     104, 122 (2d Cir. 2007), and the statements were available
     given Yuan’s sisters’ presence in the United States, cf. 8
     U.S.C. § 1252(b)(4) (“No court shall reverse a
     determination made by a trier of fact with respect to the
     availability of corroborating evidence . . . unless . . . a
     reasonable trier of fact is compelled to conclude that such
     corroborating evidence is unavailable.”).
     2 Although  the certificate did not rehabilitate Yuan’s
     testimony, the agency erred in classifying the information
     about Yuan’s arrests and detentions missing from the
     certificate as an omission because Yuan explained that he
     offered it only to show his church attendance. See Hong Fei
     Gao, 891 F.3d at 81-82. However, because the other findings
     provide substantial evidence for the adverse credibility
     determination, we do not find remand necessary. See Xiao Ji
     Chen, 471 F.3d at 339 (holding that remand is futile if we
                                   6
1         In sum, the totality of the circumstances supports the

2    agency’s adverse credibility determination. See Xiu Xia Lin,

3    534 F.3d at 167.   Contrary to Yuan’s position, the adverse

4    credibility determination extends to both his claims of past

5    and future harm, and is dispositive of asylum, withholding of

6    removal, and CAT relief because all three forms of relief are

7    based on the same discredited factual predicate. See Paul v.

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

9        For the foregoing reasons, the petition for review is

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

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

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

13   is DISMISSED as moot.

14                               FOR THE COURT:
15                               Catherine O’Hagan Wolfe,
16                               Clerk of Court




     “can ‘confidently predict’ that the agency would reach the
     same decision absent the errors”).
                                   7
