     15-1140
     Sun v. Lynch
                                                                                       BIA
                                                                                  Wright, IJ
                                                                               A201 295 610
                         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   22nd day of April, two thousand sixteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            DEBRA ANN LIVINGSTON,
10            SUSAN L. CARNEY,
11                 Circuit Judges.
12   _____________________________________
13
14   QING SUN,
15                  Petitioner,
16
17                  v.                                               15-1140
18                                                                   NAC
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Lee Ratner, Law Offices of
25                                       Michael Brown, New York, New York.
26
27   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
28                                       Assistant Attorney General; Brianne
29                                       Whelan Cohen, Senior Litigation
30                                       Counsel; Stefanie A. Svoren-Jay,
 1                                      Trial Attorney, Office of
 2                                      Immigration Litigation, United
 3                                      States Department of Justice,
 4                                      Washington, D.C.
 5
 6          UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   DENIED.

10          Petitioner Qing Sun, a native and citizen of China, seeks

11   review of a March 16, 2015, decision of the BIA affirming an

12   April 18, 2013, decision of an Immigration Judge (“IJ”) denying

13   Sun‟s application for asylum, withholding of removal, and

14   relief under the Convention Against Torture (“CAT”).                  In re

15   Qing Sun, No. A201 295 610 (B.I.A. Mar. 16, 2015), aff’g No.

16   A201 295 610 (Immig. Ct. N.Y. City Apr. 18, 2013).                 We assume

17   the    parties‟      familiarity    with    the   underlying   facts       and

18   procedural history in this case.

19          Given the circumstances of this case, we have considered

20   both    the   IJ‟s    and   the   BIA‟s    opinions   “for   the    sake    of

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

22   524, 528 (2d Cir. 2006).           The applicable standards of review

23   are well established.         See 8 U.S.C. § 1252(b)(4)(B); Yanqin

                                           2
 1   Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

 2          Under the REAL ID Act of 2005, the agency may, in light of

 3   “the     totality   of   the   circumstances,”    base     an   adverse

 4   credibility determination on, inter alia, the plausibility of

 5   an asylum applicant‟s account and inconsistencies in her

 6   statements, “without regard to whether” those inconsistencies

 7   go “to the heart of the applicant‟s claim . . . .”              8 U.S.C.

 8   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165

 9   (2d Cir. 2008).     Under the “substantial evidence” standard of

10   review, “[w]e defer . . .      to an IJ‟s credibility determination

11   unless, from the totality of the circumstances, it is plain that

12   no     reasonable   fact-finder    could   make   such     an   adverse

13   credibility ruling.”      Xiu Xia Lin, 534 F.3d at 167.

14          The adverse credibility determination against Sun is

15   sound.    The agency justifiably relied on the record of Sun‟s

16   credible fear interview.       The record of the interview bore the

17   hallmarks of reliability: the questions and answers about Sun‟s

18   past harm and future fears were memorialized in a typewritten

19   document.     A Mandarin interpreter was used.           Sun testified

20   that she was “nervous” during the interview, but not that she

21   was confused by any questions asked.       See Ming Zhang v. Holder,
                                        3
 1   585 F.3d 715, 724-25 (2d Cir. 2009) (requiring close scrutiny

 2   of credible fear interviews, but deeming reliable one that was

 3   typewritten, was conducted with an interpreter, demonstrated

 4   that the interviewee understood the questions, and included

 5   questions about past harm or fear of future harm).

 6       We have advised that “adverse credibility determinations

 7   based on „discrepancies‟ with a credible fear interview should

 8   be examined with care to ensure that they are not arbitrary.”

 9   Id. at 725.     Here, the determination was not arbitrary.           At her

10   credible fear interview, Sun was asked, “Who do you fear in the

11   People‟s Republic of China?” and “Do you believe the government

12   or anyone associated with the government of People‟s Republic

13   of China, would want to harm you for any reason?”                 She never

14   mentioned that she was caught distributing Falun Gong flyers,

15   arrested, detained for four days, beaten, and given meager food.

16   Contrary to Sun‟s argument, “[a]n inconsistency and an omission

17   are,”   for    the     purposes   of   a    credibility   determination,

18   “functionally equivalent.”         Xiu Xia Lin, 534 F.3d at 166 n.3.

19   And here, the omission was significant: the Falun Gong incident

20   was the crux of Sun‟s asylum claim.

21       The       agency     reasonably        found   that   Sun‟s    varying
                                            4
 1   explanations for the omission eroded her credibility further.

 2   In her asylum statement, Sun wrote that her snakehead told her

 3   not to mention the Falun Gong incident because, if she was sent

 4   back to China, the government “would more stringently punish”

 5   her for having revealed its repressive tactics.           At the merits

 6   hearing, she denied having written that passage and said that

 7   “maybe back at that time,” when she wrote the statement, she

 8   “was too nervous and made the mistake.”           The agency was not

 9   compelled to credit this explanation, which did nothing to

10   justify the original omission.        Majidi v. Gonzales, 430 F.3d

11   77, 80 (2d Cir. 2005) (stating that the agency is not required

12   to credit an explanation that is merely plausible or possible).

13   And that initial explanation conflicted with the one Sun offered

14   at the merits hearing for her omission of the Falun Gong

15   incident: because she “didn‟t know the point of view here in

16   United States related to Falun Gong.”

17       The    IJ   justifiably   found   both   of   Sun‟s    conflicting

18   explanations    to   be    implausible.      “[I]n    assessing      the

19   credibility of an asylum applicant‟s testimony, an IJ is

20   entitled   to   consider    whether   the    applicant‟s     story    is

21   inherently implausible.”      Wensheng Yan v. Mukasey, 509 F.3d 63,
                                       5
 1   66 (2d Cir. 2007).        Such a finding cannot be based on “bald

 2   speculation or caprice.”         Zhou Yun Zhang v. INS, 386 F.3d 66,

 3   74 (2d Cir. 2004) overruled on other grounds by Shi Liang Lin

 4   v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).          But one

 5   that is based on “speculation that inheres in inference is not

 6   „bald‟ if the inference is made available to the factfinder by

 7   record facts, or even a single fact, viewed in the light of

 8   common sense and ordinary experience.”          Siewe v. Gonzales, 480

 9   F.3d 160, 168-69 (2d Cir. 2007).          Here, common sense supports

10   the IJ‟s inference: it strains credulity that a snakehead would

11   instruct   his   charge    not   to   divulge   an   incident   of   past

12   persecution, or that Sun would flee China based on that incident

13   without knowing whether it would be repeated in the United

14   States.

15        The agency also reasonably cited various inconsistencies

16   in Sun‟s account of the glass-throwing incident.                 At her

17   credible fear interview, Sun said she “beat up somebody,” later

18   clarifying that the “somebody” was the “staff of the government”

19   and that she “took a glass and broke it over the head,” and later

20   had to pay the “injured” person‟s medical expenses.              At the

21   merits hearing, she denied hitting the village cadre with the
                                           6
 1   glass and suggested that she was falsely accused of injuring

 2   him.    In addition, at one point she gave the wrong date for the

 3   incident (July rather than April).             After being confronted with

 4   these and other inconsistencies, Sun testified that she was

 5   nervous at her credible fear interview (an explanation she

 6   continues to press here).             The agency was not compelled to

 7   accept this explanation.            Majidi, 430 F.3d at 80; see also Ming

 8   Zhang, 585 F.3d at 725 (“We again reject the notion that a

 9   petitioner‟s claim that she was nervous and distracted during

10   the credible fear interview automatically undermines or negates

11   its reliability as a source of her statements.”).

12          Given         the     omissions,           inconsistencies,          and

13   implausibilities that cast doubt on whether the critical

14   incident of alleged persecution occurred, the totality of the

15   circumstances        supports       the   agency‟s     adverse    credibility

16   determination.        Sun‟s applications for asylum, withholding of

17   removal,       and   CAT   relief    were     based   on   the   same   factual

18   predicate, and so the adverse credibility determination was

19   dispositive as to all three.              See Paul v. Gonzales, 444 F.3d

20   148, 156-57 (2d Cir. 2006).

21          For the foregoing reasons, the petition for review is
                                               7
1   DENIED.    As we have completed our review, any stay of removal

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

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

4   is DISMISSED as moot.    Any pending request for oral argument

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

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

7   34.1(b).

8                                 FOR THE COURT:
9                                 Catherine O=Hagan Wolfe, Clerk




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