         13-3188
         He v. Holder
                                                                                        BIA
                                                                                Schoppert, IJ
                                                                               A087 462 832


                             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
 2       Appeals for the Second Circuit, held at the Thurgood Marshall
 3       United States Courthouse, 40 Foley Square, in the City of New
 4       York, on the 4th day of November, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                GERARD E. LYNCH,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       JIAN HUI HE,
14
15                            Petitioner,
16
17                      v.                                      13-3188
18                                                              NAC
19
20       ERIC H. HOLDER, JR., UNITED
21       STATES ATTORNEY GENERAL,
22
23                            Respondent.
24
25       _____________________________________
26
27       FOR PETITIONER:               Oleh R. Tustaniwsky, Brooklyn, N.Y.
28
29
 1   FOR RESPONDENT:          Stuart F. Delery, Assistant Attorney
 2                            General; Carl McIntyre, Assistant
 3                            Director; Andrew Oliveira, Trial
 4                            Attorney, Office of Immigration
 5                            Litigation, United States Department
 6                            of Justice, Washington D.C.

 7       UPON DUE CONSIDERATION of this petition for review of a

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

 9   ORDERED, ADJUDGED, AND DECREED that the petition for review

10   is DENIED.

11       Jian Hui He, a native and citizen of China, seeks

12   review of a July 26, 2013, decision of the BIA affirming the

13   December 14, 2011, decision of an Immigration Judge (“IJ”),

14   which denied his application for asylum, withholding of

15   removal, and relief pursuant to the Convention Against

16   Torture (“CAT”).    In re Jian Hui He, No. A087 462 832

17   (B.I.A. July 26, 2013), aff’g No. A087 462 832 (Immig. Ct.

18   N.Y.C. Dec. 14, 2011).    We assume the parties’ familiarity

19   with the underlying facts and procedural history in this

20   case.

21           Under the circumstances of this case, we have reviewed

22   the IJ’s decision as supplemented by the BIA.    See Yan Chen

23   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The

24   applicable standards of review are well established.      See 8

25

                                    2
 1   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

 2   513 (2d Cir. 2009).

 3       We conclude that the agency’s findings provide

 4   substantial evidence to support the adverse credibility

 5   determination.     For asylum applications, like He’s, governed

 6   by the REAL ID Act of 2005, the agency may, “[c]onsidering

 7   the totality of the circumstances,” base a credibility

 8   determination on an asylum applicant’s demeanor, the

 9   plausibility of his account, and any inconsistencies in his

10   statements, “without regard to whether” they go “to the

11   heart of the applicant’s claim.”     8 U.S.C.

12   § 1158(b)(1)(B)(iii).     “We defer therefore to [the agency’s]

13   credibility determination unless, from the totality of the

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

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

16   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

17       The agency reasonably based its adverse credibility

18   determination on the inconsistencies between He’s testimony

19   and the information contained in a Treasury Enforcement

20   Communications System (“TECS”) document.        He testified that

21   he was arrested and beaten in China in July 2007, left China

22   in April 2008, and had not previously traveled outside of

23   the country.     However, the TECS document showed that he

                                     3
 1   passed through Hong Kong on his way to Colombia via Paris,

 2   France in March 2007, prior to his alleged persecution.     He

 3   does not dispute the inconsistency, but instead argues that

 4   the TECS document is unreliable because: (1) it listed his

 5   sex as female; (2) the government did not identify who

 6   collected or recorded the information; and (3) it was

 7   unclear in which country the information was recorded.

 8   These arguments are unavailing.     The Federal Rules of

 9   Evidence and the heightened procedural protections of a

10   criminal trial do not apply to the admission of documentary

11   evidence in a removal proceeding.     See Felzcerek v. INS, 75

12   F.3d 112, 115 (2d Cir. 1996); Aslam v. Mukasey, 537 F.3d

13   110,114 (2d Cir. 2008).   While the document inaccurately

14   identified He as female, given the accuracy of the other,

15   more detailed identifying information, i.e., He’s name, date

16   of birth, and passport number, it was not error for the

17   agency to rely on the document.

18       He’s reliance on a Third Circuit case is misplaced.

19   The Third Circuit held that a State Department report,

20   submitted to show an alien had forged documents, was

21   unreliable because it contained “multiple hearsay of the

22   most troubling kind” and gave no information as to the

23   investigation that took place.    Ezeagwuna v. Ashcroft, 325

                                   4
 1   F.3d 396, 406-08 (3d Cir. 2003).   In contrast, the TECS

 2   document was used only to show identifying information and

 3   He’s travel route, which did not require a qualitative

 4   assessment.   Moreover, when, as here, a record is created as

 5   part of the routine duties of government officials, courts

 6   presume that they have properly discharged their official

 7   duties, absent clear evidence to the contrary.   Nat’l

 8   Archives & Records Admin. v. Favish, 541 U.S. 157, 174

 9   (2004).

10       Having called He’s credibility into question, the

11   agency reasonably determined that his failure to corroborate

12   the approximate date that he left China further undermined

13   his claim. See 8 U.S.C. § 1158(b)(1)(B)(ii) (providing that

14   “[t]he testimony of the applicant may be sufficient to

15   sustain the applicant’s burden without corroboration, but

16   only if the applicant satisfies the trier of fact that the

17   applicant’s testimony is credible, is persuasive, and refers

18   to specific facts sufficient to demonstrate that the

19   applicant is a refugee” (emphasis added)).   “An applicant’s

20   failure to corroborate his . . . testimony may bear on

21   credibility, because the absence of corroboration in general

22   makes an applicant unable to rehabilitate testimony that has

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

                                   5
 1   496 F.3d 268, 273 (2d Cir. 2007).    He’s brother-in-law

 2   testified that he called He in April 2008, when He was

 3   purportedly in China.    The agency reasonably gave little

 4   weight to this testimony because the telephone records did

 5   not show any outgoing calls to China, and there was no

 6   objective evidence verifying that a phone card was used to

 7   make the call.

 8       He also submitted a letter from his father, who stated

 9   that the entire family, including He, was detained and

10   beaten in July 2007 and that He left China in April 2008;

11   and a letter from a member of his church in China attesting

12   to the July 2007 incident.    The agency reasonably afforded

13   less weight to this evidence because the letters were

14   unsworn and from interested witnesses not subject to cross

15   examination.     See In re H-L-H & Z-Y-Z, 25 I. & N. Dec. 209,

16   215 (B.I.A.    2010) (giving diminished evidentiary weight to

17   letters from relatives because they were “interested

18   witnesses who were not subject to cross-examination”), rev’d

19   on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130

20   (2d Cir. 2012); see also Xiao Ji Chen v. U.S. Dep’t of

21   Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding weight

22   accorded to applicant’s evidence lies largely within agency

23   discretion).

                                     6
 1       Given that the inconsistency calls into question He’s

 2   presence in China at the time of his alleged persecution,

 3   the totality of the circumstances supports the adverse

 4   credibility determination.   Because all of He’s claims

 5   depend on the same factual predicate, the adverse

 6   credibility determination is dispositive of He’s

 7   applications for asylum, withholding of removal, and CAT

 8   relief.   Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

 9   2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

10   523 (2d Cir. 2005).
11
12       For the foregoing reasons, the petition for review is

13   DENIED.   He’s request for oral argument in this petition is

14   DENIED in accordance with Federal Rule of Appellate

15   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

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




                                   7
