     14-4483
     Sun v. Lynch
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A201 117 985
                         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   31st day of March, two thousand sixteen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            GUIDO CALABRESI,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   YI SUN,
14                  Petitioner,
15
16                  v.                                               14-4483
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Vlad Kuzmin, Kuzmin & Associates
24                                       P.C., New York, New York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal
27                                       Assistant Attorney General; Nancy
28                                       Friedman, Senior Litigation
29                                       Counsel; Margaret A. O’Donnell,
30                                       Trial Attorney, Office of
31                                       Immigration Litigation, United
32                                       States Department of Justice,
33                                       Washington, D.C.
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 is

4    DENIED.

5        Petitioner Yi Sun, a native and citizen of the People’s

6    Republic of China, seeks review of a November 4, 2014, decision

7    of the BIA affirming a December 11, 2012, decision of an

8    Immigration Judge (“IJ”) denying Sun’s application for asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).    In re Yi Sun, No. A201 117 985 (B.I.A. Nov.

11   4, 2014), aff’g No. A201 117 985 (Immig. Ct. N.Y. City Dec. 11,

12   2012).    We assume the parties’ familiarity with the underlying

13   facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed the

15   IJ’s decision, including the portions not explicitly discussed

16   by the BIA.    Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d

17   Cir. 2005).     The applicable standards of review are well

18   established.    8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,

19   562 F.3d 510, 513 (2d Cir. 2009).

20       For asylum applications, like Sun’s, governed by the REAL

21   ID Act, the agency may, “[c]onsidering the totality of the

22   circumstances,” base a credibility finding on inconsistencies

23   between the applicant’s statements and other evidence, “without

                                     2
1    regard to whether” they go “to the heart of the applicant’s

2    claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,

3    534 F.3d 162, 163-64 (2d Cir. 2008).        “We defer . . . to an IJ’s

4    credibility determination unless, from the totality of the

5    circumstances, it is plain that no reasonable fact-finder could

6    make such an adverse credibility ruling.”        Xiu Xia Lin, 534 F.3d

7    at 167.

8        Substantial evidence supports the IJ’s adverse credibility

9    determination, which was based on inconsistencies within Sun’s

10   testimony   and   between   his   testimony    and   his   documentary

11   evidence, as well as a lack of corroborating evidence.              The

12   first inconsistency identified by the IJ regarded the date of

13   Sun’s baptism: Sun testified that he was baptized in June 2009,

14   a date after he had stopped attending church in China.          The IJ

15   was not compelled to accept Sun’s explanation that he misspoke

16   and meant 2008: the misstatement could give rise to either the

17   inference Sun advanced (that he simply stated the wrong year),

18   or to an inference that Sun memorized the relevant date but

19   forgot the year.    See Majidi v. Gonzales, 430 F.3d 77, 80 (2d

20   Cir. 2005) (holding that the agency need not credit an

21   applicant’s   explanation     for       inconsistencies    unless   the

22   explanations would compel a reasonable fact-finder to do so);

23   Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Decisions

                                         3
1    as to which of competing inferences to draw are entirely within

2    the province of the trier of fact” (quotation marks, alteration,

3    and citation omitted)).

4        Sun also testified that police started looking for him

5    around April 2009, and from that point until his December 2012

6    merits hearing they came to his family’s house once every two

7    or three months.   However, in a 2012 letter, his father wrote

8    that police only started looking for him “this year.”      The IJ

9    was not required to credit Sun’s explanation that his father

10   may not have written clearly, as the IJ’s interpretation that

11   Sun’s father meant 2012 was at least as plausible as Sun’s

12   reading of the letter as referring to 2009; further, neither

13   Sun’s asylum application nor his mother mentioned anybody

14   looking for him in China.   Majidi, 430 F.3d at 80; Siewe, 480

15   F.3d at 167.

16       The IJ also noted Sun’s lack of corroborating evidence.    An

17   applicant’s failure to corroborate testimony may bear on

18   credibility, either because the absence of particular evidence

19   is viewed as suspicious, or because the absence of corroboration

20   in general makes an applicant unable to rehabilitate testimony

21   already called into question.       See Biao Yang v. Gonzales, 496

22   F.3d 268, 273 (2d Cir. 2007).   The IJ found that the form letter

23   from Sun’s church in New York lacked specifics, and that Sun

                                     4
1    had not convincingly explained why nobody from his church

2    testified or signed an affidavit on his behalf.    See Chuilu Liu

3    v. Holder, 575 F.3d 193, 198 (2d Cir. 2009) (“[T]he alien bears

4    the ultimate burden of introducing such evidence without

5    prompting from the IJ.”).    Sun also failed to corroborate his

6    testimony that he was baptized in China: a letter from his friend

7    in China mentioning the baptism was not admitted into evidence

8    because it was not timely submitted to the IJ.    Neither the IJ’s

9    refusal to admit the document, nor his alternative finding that

10   if admitted the letter was entitled to little weight constituted

11   an abuse of discretion because Sun was unable to justify the

12   late submission, and the document was unsworn and bore no

13   indicia of reliability.     See Dedji v. Mukasey, 525 F.3d 187,

14   191 (2d Cir. 2008) (the decision not to admit untimely-filed

15   documents is reviewed for abuse of discretion); Xiao Ji Chen

16   v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (the

17   weight accorded to evidence lies largely within the agency’s

18   discretion).

19       Given the inconsistencies and lack of corroboration,

20   substantial evidence supports the agency’s adverse credibility

21   determination, which is dispositive of asylum, withholding of

22   removal, and CAT relief.    Xiu Xia Lin, 534 F.3d at 167; Paul

23   v. Gonzales, 444 F.3d 148, 155-57 (2d Cir. 2006).     Because the

                                     5
1    credibility determination is dispositive, we do not reach the

2    agency’s alternative findings.       See INS v. Bagamasbad, 429 U.S.

3    24, 25 (1976) (“As a general rule courts and agencies are not

4    required to make findings on issues the decision of which is

5    unnecessary to the results they reach.”).

6        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

13   34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O=Hagan Wolfe, Clerk




                                      6
