     18-424
     Sun v. Barr
                                                                                    BIA
                                                                             Vomacka, IJ
                                                                            A205 631 399
                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                         AMENDED 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 23rd day of January, two thousand twenty.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            JOHN M. WALKER, JR.,
 9                 Circuit Judges.1
10   _____________________________________
11
12   XIU LAN SUN,
13            Petitioner,
14
15                 v.                                             18-424
16                                                                NAC
17   WILLIAM P. BARR, UNITED STATES
18   ATTORNEY GENERAL,
19            Respondent.
20   _____________________________________
21
22   FOR PETITIONER:                   Mike P. Gao, Flushing, NY.
23
24   FOR RESPONDENT:                   Chad A. Readler Acting Assistant
25                                     Attorney General; Russell J.E.
26                                     Verby, Senior Litigation Counsel;

     1Judge Christopher F. Droney, who was originally assigned to the panel, retired
     from the Court, effective January 1, 2020, prior to the resolution of this case.
     The remaining two members of the panel, who are in agreement, have determined
     the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone,
     140 F.3d 457, 458–59 (2d Cir. 1998).
1                                    John D. Williams, Trial Attorney,
2                                    Office of Immigration Litigation,
3                                    United States Department of
4                                    Justice, Washington, DC.
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

9    is DENIED.

10         Petitioner Xiu Lan Sun, a native and citizen of the

11   People’s Republic of China, seeks review of a February 6,

12   2018, decision of the BIA affirming a May 17, 2017, decision

13   of an Immigration Judge (“IJ”) denying Sun’s application for

14   asylum,   withholding      of   removal,      and   relief   under   the

15   Convention Against Torture (“CAT”).           In re Xiu Lan Sun, No.

16   A 205 631 399 (B.I.A. Feb. 6, 2018), aff’g No. A 205 631 399

17   (Immig. Ct. N.Y. City May 17, 2017).           We assume the parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

20         We have reviewed both the BIA’s and IJ’s decisions.            See

21   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).

22   The applicable standards of review are well established.             See

23   8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d

24   67,   76–77   (2d   Cir.    2018).       In    making   a    credibility

25   determination, the agency must “[c]onsider[] the totality of


                                          2
1    the circumstances” and may base a finding on the applicant’s

2    “demeanor, candor, or responsiveness . . . , the inherent

3    plausibility         of    the     applicant’s       .     .    .     account,”

4    inconsistencies in the applicant’s statements or between her

5    statements and other evidence, “without regard to whether an

6    inconsistency, inaccuracy, or falsehood goes to the heart of

7    the    applicant’s        claim,    or   any    other    relevant       factor.”

8    8 U.S.C. § 1158(b)(1)(B)(iii).                 “We defer . . . to an IJ’s

9    credibility determination unless, from the totality of the

10   circumstances, it is plain that no reasonable fact-finder

11   could make such an adverse credibility ruling.”                     Xiu Xia Lin

12   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei

13   Gao,    891   F.3d    at    76.     As   discussed       below,     substantial

14   evidence supports the adverse credibility determination.

15          The IJ reasonably concluded that Sun’s written statements

16   and    testimony      offered      varying     accounts    of     her   alleged

17   persecution—that she was required to have an intrauterine

18   device (“IUD”) in 1986, have pregnancy checks thereafter, and

19   was forced to have an abortion in 2004.                         See 8 U.S.C.

20   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163–64, 166–

21   67.    In her written statements, Sun represented that she was

22   required to have an IUD after she had her first child and

23   when family planning officials discovered she was pregnant

                                              3
1    with a second child, they “demanded” that she have an abortion

2    and took her to an operating room where she underwent the

3    procedure.     But Sun testified that family planning officers

4    restrained her while a nurse implanted her IUD, and a family

5    planning officer held her down during her abortion.                     The IJ

6    was not compelled to accept Sun’s explanation that an attorney

7    prepared the statement as it failed to account for the

8    omission of the allegations of physical force, particularly

9    as the IJ had explicitly requested a more detailed written

10   statement.    See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

11   2005)(“A petitioner must do more than offer a plausible

12   explanation    for    h[er]      inconsistent     statements      to    secure

13   relief; [s]he must demonstrate that a reasonable fact-finder

14   would be compelled to credit h[er] testimony.” (internal

15   quotation marks omitted)).

16         Similarly, Sun’s written statements failed to mention

17   her employment at a state-owned factory, much less any adverse

18   workplace    repercussions       stemming     from     her    abortion.      In

19   contrast, Sun testified that after her abortion, her salary

20   was   reduced,       and   she     was      targeted    for     disciplinary

21   infractions.      The      IJ   was   not    required    to    accept     Sun’s

22   explanation that she did not know to include these facts and

23   was entitled to rely on these omissions as they were direct

                                           4
1    consequences of her violation of the family planning policy

2    that a credible petitioner would be expected to disclose under

3    the circumstances.       See id; Hong Fei Gao, 891 F.3d at 78–79.

4        The IJ also reasonably concluded that aspects of Sun’s

5    testimony    were    implausible    and     more    consistent      with    a

6    voluntary    abortion,    given    that   she      testified   to    lesser

7    restrictions—birth control pills that she voluntarily ceased

8    using   without     consequence    rather    than     an   IUD—after       the

9    abortion.    See 8 U.S.C. § 1158(b)(1)(B)(iii); see Siewe v.

10   Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007) (“[S]peculation

11   that inheres in inference is not ‘bald’ if the inference is

12   made available to the factfinder by record facts . . . in the

13   light of common sense and ordinary experience.”).                   Nor did

14   the IJ err in relying on Sun’s three voluntary returns to

15   China prior to seeking asylum in the United States, as

16   undermining Sun’s fear of future harm.              See Kone v. Holder,

17   596 F.3d 141, 150–51 (2d Cir. 2010) (holding that while

18   “return trips alone are insufficient to establish lack of

19   credibility,” an IJ may consider them in connection with other

20   findings).

21       The IJ also reasonably relied on Sun’s lack of reliable

22   corroboration.      “An applicant’s failure to corroborate his

23   or her testimony may bear on credibility, because the absence

                                        5
1    of corroboration in general makes an applicant unable to

2    rehabilitate testimony that has already been called into

3    question.”       Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.

4    2007).    As the IJ found, Sun had no employment or medical

5    records to substantiate her claim.          See Chuilu Liu v. Holder,

6    575 F.3d 193, 198 (2d Cir. 2009) (“[T]he alien bears the

7    ultimate burden of introducing [corroborating] evidence.”).

8    The IJ did not err in declining to credit the letter from

9    Sun’s mother as it did not mention the IUD or workplace issues

10   or give any detail about the abortion, and it was from an

11   interested witness not subject to cross-examination.                   See

12   Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring

13   to agency’s decision to afford little weight to spouse’s

14   letter    from    China    because   it   was   unsworn   and   from   an

15   interested witness); Matter of H-L-H- & Z-Y-Z-, 25 I. & N.

16   Dec. 209, 215 (B.I.A. 2010) (finding that letters from alien’s

17   friends   and     family   were   insufficient    support   for   claims

18   because they were from interested witnesses not subject to

19   cross-examination), overruled on other grounds by Hui Lin

20   Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012).

21       Given the variance among Sun’s written statements and

22   testimony, the implausible aspects of her claim, her multiple

23   returns to China, and the lack of corroboration, the “totality

                                          6
1    of   the   circumstances”    supports   the   adverse   credibility

2    determination.    See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

3    Lin, 534 F.3d at 167.       That determination is dispositive of

4    asylum, withholding of removal, and CAT relief because all

5    three claims are based on the same factual predicate.           See

6    Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

7         For the foregoing reasons, the petition for review is

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

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

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

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

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

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

14   34.1(b).

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




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