     18-256
     Wu v. Barr
                                                                                   BIA
                                                                             Poczter, IJ
                                                                          A209 218 799
                       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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 23rd day of December, two thousand nineteen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            CHRISTOPHER F. DRONEY,
 9            MICHAEL H. PARK,
10                 Circuit Judges.
11   _____________________________________
12
13   JIN MEI WU, AKA JINMEI WU,
14            Petitioner,
15
16                v.                                             18-256
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Adedayo O. Idowu, Esq., New York,
24                                    NY.
25
26   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
27                                    Attorney General; Anthony P.
28                                    Nicastro, Assistant Director;
29                                    Yanal H. Yousef, Trial Attorney,
30                                    Office of Immigration Litigation,
31                                    United States Department of
32                                    Justice, 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 Jin Mei Wu, a native and citizen of the

6    People’s Republic of China, seeks review of a December 29,

7    2017, decision of the BIA affirming an April 26, 2017,

8    decision   of   an   Immigration      Judge    (“IJ”)      denying   asylum,

9    withholding     of   removal,   and       relief   under   the   Convention

10   Against Torture (“CAT”).        In re Jin Mei Wu, No. A209 218 799

11   (B.I.A. Dec. 29, 2017), aff’g No. A209 218 799 (Immig. Ct.

12   N.Y. City Apr. 26, 2017).       We assume the parties’ familiarity

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

14       Under the circumstances of this case, we have reviewed

15   the IJ’s decision as modified by the BIA.               See Xue Hong Yang

16   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

17   The applicable standards of review are well established.                See

18   8 U.S.C. § 1252(b)(4); Hong Fei Gao v. Sessions, 891 F.3d 67,

19   76 (2d Cir. 2018).

20       “Considering the totality of the circumstances, and all

21   relevant factors, a trier of fact may base a credibility

22   determination on . . . the consistency between the applicant’s


                                           2
1    or witness’s written and oral statements . . . , the internal

2    consistency of each such statement, [and] the consistency of

3    such statements with other evidence of record.”                 8 U.S.C.

4    § 1158(b)(1)(B)(iii).        “We defer . . . to an IJ’s credibility

5    determination unless, from the totality of the circumstances,

6    it is plain that no reasonable fact-finder could make such an

7    adverse credibility ruling.”             Xiu Xia Lin v. Mukasey, 534

8    F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d

9    at     76.     Substantial     evidence      supports    the     agency’s

10   determination that Wu was not credible.

11          Wu alleged past persecution in China on account of her

12   practice of Christianity.         The agency reasonably relied on

13   Wu’s    inconsistent     statements       regarding     incidents    that

14   occurred during her alleged detention, including that she was

15   forced to work in a shoe factory, was not given food, and was

16   hit by a guard for spreading the gospel.                  See 8 U.S.C.

17   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 165-

18   67.    During Wu’s credible fear interview, she testified that

19   she was required to work at a shoe factory while she was

20   detained and a guard hit her for talking about the gospel;

21   she    did   not   mention   these   incidents    in    her    testimony.

22   Moreover, during her testimony, she stated that she had been


                                          3
1    starved for two days while detained, but she did not mention

2    this   fact   in   her       written   application   or    credible    fear

3    interview.      These    inconsistent       descriptions    of   the   sole

4    incident of past harm provide substantial evidence for the

5    adverse credibility determination.               See Ramsameachire v.

6    Ashcroft, 357 F.3d 169, 180–81 (2d Cir. 2004) (holding that

7    “materially different accounts” of              past persecution “may

8    render the alien’s testimony incredible”); see also Hong Fei

9    Gao, 891 F.3d at 78–79 (weight given to an omission depends,

10   in part, on whether “facts are ones that a credible petitioner

11   would reasonably have been expected to disclose under the

12   relevant circumstances”); Xian Tuan Ye v. Dep’t of Homeland

13   Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding that “material

14   inconsistency      in   an    aspect   of   [petitioner’s]    story    that

15   served as an example of the very persecution from which he

16   sought asylum . . . afforded substantial evidence to support

17   the adverse credibility finding” (internal quotation marks

18   and citation omitted)).            The agency was not required to

19   credit Wu’s explanation that she was nervous.              See Ming Zhang

20   v. Holder, 585 F.3d 715, 725 (2d Cir. 2009) (“We again reject

21   the notion that a petitioner’s claim that she was nervous and

22   distracted during the credible fear interview automatically


                                            4
1    undermines or negates its reliability as a source of her

2    statements.”); Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

3    2005) (“A petitioner must do more than offer a plausible

4    explanation for his inconsistent statements to secure relief;

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

6    compelled to credit his testimony.” (internal quotation marks

7    omitted)).       Wu’s challenge to the agency’s reliance on the

8    record of the credible fear interview is unexhausted because

9    she did not raise it before the BIA.                   See Lin Zhong v. U.S.

10   Dep’t    of    Justice,    480    F.3d        104,   121-22    (2d   Cir.   2007)

11   (requiring petitioner to exhaust all issues before the BIA).

12   Moreover, as the IJ determined, the interview has sufficient

13   indicia of reliability because it was memorialized in a typed

14   question and answer format, indicating a close to verbatim

15   record.       The interview included questions designed to elicit

16   an asylum claim, such as why Wu left China and what she

17   believed would happen upon her return.                        Moreover, Wu was

18   responsive to the questions during the interview, which was

19   conducted through a Mandarin interpreter.                      See Ming Zhang,

20   585 F.3d at 724–25.

21       We        decline     to     uphold        the    agency’s       finding   of

22   inconsistency between Wu’s statement that the police visited


                                               5
1    her home every night after she evaded a subsequent arrest and

2    her husband’s letter which reported that they were under

3    surveillance    because       the    statements    are    not    necessarily

4    inconsistent.       See Gurung v. Barr, 929 F.3d 56, 61 (2d Cir.

5    2019).

6        Having      questioned          Wu’s    credibility,        the   agency

7    reasonably     relied    on    her     failure     to    rehabilitate   her

8    testimony    with    corroborating         evidence.      “An    applicant’s

9    failure to corroborate his or her testimony may bear on

10   credibility, because the absence of corroboration in general

11   makes an applicant unable to rehabilitate testimony that has

12   already been called into question.”               Biao Yang v. Gonzales,

13   496 F.3d 268, 273 (2d Cir. 2007).                 The letter from Wu’s

14   husband lacked detail, did not explicitly corroborate that

15   the police visited their home, and was from an interested

16   witness not subject to cross examination.                       See Y.C. v.

17   Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (holding that

18   “[w]e defer to the agency’s determination of the weight

19   afforded to an alien’s documentary evidence” and upholding

20   agency’s    decision    not    to    credit    letter    from    applicant’s

21   spouse in China).       Wu’s only other evidence relating to past

22   events was a “Public Law Enforcement Decision” which stated


                                            6
1    there was evidence she attended a Christian gathering and

2    that she would be detained for ten days and fined.          The agency

3    did not abuse its discretion in declining to credit the

4    document as it did not resolve the inconsistencies in Wu’s

5    descriptions of her detention.          See Y.C., 741 F.3d at 332.

6          Given the inconsistent descriptions of Wu’s detention

7    and   the    lack   of   reliable       corroboration,    the   adverse

8    credibility     determination    is      supported   by    substantial

9    evidence.     See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

10   534 F.3d at 167; Biao Yang, 496 F.3d at 273.               The agency

11   therefore properly denied asylum, withholding of removal, and

12   CAT relief because all three forms of relief are based on the

13   same discredited factual predicate.           See Paul v. Gonzales,

14   444 F.3d 148, 156–57 (2d Cir. 2006).

15         For the foregoing reasons, the petition for review is

16   DENIED.     All pending motions and applications are DENIED and

17   stays VACATED.

18                                   FOR THE COURT:
19                                   Catherine O’Hagan Wolfe,
20                                   Clerk of Court




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