         12-2236(L)
         Cui v. Lynch
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A088 552 390
                                                                               A088 552 391
                             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 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 United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 16th day of March, two thousand sixteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                DEBRA ANN LIVINGSTON,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       YING HUA CUI, GUANG HUI PIAO,
14                Petitioners,
15
16                          v.                                  12-2236(L);
17                                                              12-4171(Con)
18                                                              NAC
19       LORETTA E. LYNCH, UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.*
22       _____________________________________
23
24


                        *
                    Loretta E. Lynch is automatically substituted as the
             respondent in this case pursuant to Federal Rule of Appellate
             Procedure 43(c)(2).
 1   FOR PETITIONER:           Theodore N. Cox (Joshua E. Bardavid,
 2                             on the brief), New York, NY.
 3
 4   FOR RESPONDENT:           Stuart F. Delery, Acting Assistant
 5                             Attorney General; Anh-Thu P. Mai-
 6                             Windle, Senior Litigation Counsel;
 7                             Jeffrey R. Meyer, Trial Attorney,
 8                             Office of Immigration Litigation,
 9                             United States Department of Justice,
10                             Washington, D.C.
11
12       UPON DUE CONSIDERATION of these petitions for review of

13   decisions of the Board of Immigration Appeals (“BIA”), it is

14   hereby ORDERED, ADJUDGED, AND DECREED that the petitions for

15   review are DENIED.

16       Petitioners Ying Hua Cui and Guang Hui Piao, natives

17   and citizens of China, seek review of a May 9, 2012, order

18   of the BIA, affirming the July 10, 2008, decision of

19   Immigration Judge (“IJ”) Barbara A. Nelson, which denied

20   their application for asylum, withholding of removal, and

21   relief under the Convention Against Torture (“CAT”), In re

22   Ying Hua Cui, Guang Hui Piao, No. A088 552 390/391 (B.I.A.

23   May 9, 2012), aff’g No. A088 552 390/391 (Immig. Ct. N.Y.

24   City July 10, 2008), and a September 19, 2012, decision of

25   the BIA denying their motion to reconsider and reopen, In re

26   Ying Hua Cui, Guang Hui Piao, No. A088 552 390/391 (B.I.A.

27   Sept. 19, 2012).     We assume the parties’ familiarity with

28   the underlying facts and procedural history in this case.


                                     2
 1       With respect to the initial denial of asylum,

 2   withholding of removal, and CAT relief, we have reviewed

 3   both the IJ’s and BIA’s opinions.    See Yun-Zui Guan v.

 4   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).     The applicable

 5   standards of review are well-established.     See 8 U.S.C.

 6   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

 7   (2d Cir. 2009).

 8       For applications like Petitioners’, which are governed

 9   by the REAL ID Act, the agency may base a credibility

10   finding on an applicant’s demeanor, the plausibility of his

11   account, and inconsistencies in his statements, without

12   regard to whether they go “to the heart of the applicant’s

13   claim.”   8 U.S.C. § 1158(b)(1)(B)(iii).    We “defer [] to an

14   IJ’s credibility determination unless, from the totality of

15   the circumstances, it is plain that no reasonable

16   fact-finder could make such an adverse credibility ruling.”

17   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

18       Notwithstanding Petitioners’ assertions to the

19   contrary, we find insufficient grounds to overturn the

20   adverse credibility determination.   The agency did not err

21   in relying on the omission of Petitioners’ arrest and

22   detention from Cui’s mother’s first letter.     See id. at 166

23   n. 3 (providing that, for purposes of analyzing a


                                   3
 1   credibility determination, “[a]n inconsistency and an

 2   omission are . . . functionally equivalent”).    In their

 3   brief, Petitioners concede that Cui’s mother’s first letter

 4   did not directly mention their arrest but argue that the

 5   incident can be inferred from references to being monitored

 6   by police and Cui’s periodic police reporting obligations.

 7   Although Petitioners are correct that the letter supports a

 8   strong inference that their arrest and detention had in fact

 9   occurred, because the agency’s inference “is tethered to the

10   evidentiary record, we will accord deference to the

11   finding.”     See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d

12   Cir. 2007).    Petitioners’ related contention, that the

13   agency failed to consider the letter’s status as a personal

14   communication rather than a document for court submission,

15   is also misplaced because Petitioners had the opportunity to

16   lay a foundation for the letter as a personal communication

17   but declined to do so.

18       Petitioners have also failed to show that the agency

19   ignored their corroborating evidence.     See Xiao Ji Chen v.

20   U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)

21   (presuming that the agency “has taken into account all of

22   the evidence before [it], unless the record compellingly

23   suggests otherwise”).    Indeed, the IJ explicitly considered


                                     4
 1   Cui’s cousin’s letter and discounted it based on a

 2   reasonable inference that it failed to mention Petitioners’

 3   arrests.   Id.; see Siewe, 480 F.3d at 168-69.   Similarly,

 4   the agency explicitly considered Cui’s medical records and

 5   reasonably determined that they did not indicate that she

 6   suffered any injuries.   See Xiao Ji Chen, 471 F.3d at 342

 7   (noting that the weight accorded to the applicant’s evidence

 8   in immigration proceedings lies largely within the

 9   discretion of the agency).   Moreover, the agency’s failure

10   to explicitly discuss a letter regarding Piao’s employment

11   does not compellingly suggest that the letter was ignored

12   because it merely indicated that Piao was fired for

13   participating in “illegal nation activity” and did not

14   confirm any arrest for harboring refugees.   See Xiao Ji

15   Chen, 471 F.3d at 337 n.17; see also Zhi Yun Gao v. Mukasey,

16   508 F.3d 86, 87 (2d Cir. 2007) (noting that the agency is

17   not required to expressly “parse or refute on the record

18   each individual argument or piece of evidence offered by the

19   petitioner” (internal quotation marks omitted)).

20       Petitioners’ contention that the agency erred by

21   failing to perform an independent well-founded fear analysis

22   based solely on their harboring of North Korean refugees is

23   also misplaced.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d

24   Cir. 2006).   We have explained that a credibility-based
                                   5
 1   denial of a claim of past persecution will support the

 2   denial of a claim of future persecution where “the only

 3   evidence of a future threat to life or freedom was

 4   petitioner’s contentions, which the IJ found not

 5   believable,” id., and here, Petitioners have not identified

 6   any evidence demonstrating a future threat absent their

 7   incredible testimony that their harboring of refugees was

 8   discovered by Chinese authorities.   See Hongsheng Leng v.

 9   Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (holding that “to

10   establish a well-founded fear of persecution in the absence

11   of any evidence of past persecution, an alien must make some

12   showing that authorities in his country of nationality are

13   either aware of his activities or likely to become aware of

14   his activities”).   Accordingly, Petitioners have failed to

15   show that the agency erred by not conducting an independent

16   well-founded fear analysis based solely on their status as

17   North Korean refugee harborers.   See Paul, 444 F.3d at 156.

18       Similarly, the agency did not fail to conduct an

19   independent CAT analysis, as the IJ separately addressed the

20   CAT claim in the final page of her decision and rejected it

21   because there was no indication that Cui was tortured in any

22   way or that it is likely she would be tortured if returned

23   to China.   This determination was reasonable in light of

24   both the adverse credibility determination and the agency’s
                                   6
 1   uncontested finding that Cui did not allege serious

 2   mistreatment while detained and was only required to

 3   periodically report to police.    See 8 C.F.R. § 1208.18(a)

 4   (providing that torture under the CAT is “an extreme form of

 5   cruel and inhuman treatment . . . specifically intended to

 6   inflict severe physical or mental pain or suffering”); see

 7   also Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004).

 8       Nor did the BIA abuse its discretion by denying

 9   reconsideration and reopening.    See Kaur v. BIA, 413 F.3d

10   232, 233 (2d Cir. 2005) (per curiam); Jin Ming Liu v.

11   Gonzales, 439 F.3d 109, 111 (2d Cir. 2006).

12       As to reconsideration, as noted above, the agency did

13   not err in finding that Cui failed to demonstrate a

14   likelihood of torture upon her return to China, or in

15   denying relief on credibility grounds.   Therefore, the BIA’s

16   denial of reconsideration does not compel remand, even

17   assuming errors in the agency’s alternative nexus

18   determination.   See Shunfu Li v. Mukasey, 529 F.3d 141, 150

19   (2d Cir. 2008) (noting that remand is futile when the Court

20   can “confidently [] predict that the agency would reach the

21   same decision absent” any errors that were made (internal

22   quotation marks omitted)).

23       Lastly, the BIA did not abuse its discretion in denying

24   reopening because Cui’s mother’s supplemental letter, which
                                   7
 1   corroborated Petitioners’ arrest and detention, could have

 2   been provided at the time of Petitioners’ merits hearing.

 3   See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings

 4   shall not be granted unless it appears to the Board that

 5   evidence sought to be offered is material and was not

 6   available and could not have been discovered or presented at

 7   the former hearing”); see also Norani v. Gonzales, 451 F.3d

 8   292, 294 & n. 3 (2d Cir. 2006) (per curiam) (looking to the

 9   date on which the IJ closed the hearing as the date before

10   which the evidence must have been unavailable,

11   undiscoverable, or unpresentable).

12       For the foregoing reasons, the petitions for review are

13   DENIED.   As we have completed our review, the pending motion

14   for a stay of removal in these petitions is DISMISSED as

15   moot.

16                               FOR THE COURT:
17                               Catherine O’Hagan Wolfe, Clerk
18
19
20




                                   8
