     17-1828
     Tan v. Barr
                                                                                   BIA
                                                                            Bukszpan, IJ
                                                                           A205 886 707
                        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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 29th day of May, two thousand nineteen.
 5
 6   PRESENT:
 7            ROBERT D. SACK,
 8            CHRISTOPHER F. DRONEY,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   HAI TAN,
14                 Petitioner,
15
16                 v.                                            17-1828
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Jim Li, Flushing, NY.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; Kiley Kane,
27                                    Senior Litigation Counsel; Ann M.
28                                    Welhaf, Trial Attorney, Office of
29                                    Immigration Litigation, United
30                                    States Department of Justice,
31                                    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 Hai Tan, a native and citizen of the People’s

6    Republic of China, seeks review of a May 15, 2017, decision

7    of the BIA affirming a September 19, 2016, decision of an

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

9    removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Hai Tan, No. A205 886 707 (B.I.A. May 15,

11   2017), aff’g No. A205 886 707 (Immig. Ct. N.Y. City Sept. 19,

12   2016).       We     assume   the   parties’    familiarity   with     the

13   underlying facts and procedural history in this case.

14       We have reviewed the IJ’s decision as modified by the

15   BIA, which did not consider the IJ’s findings regarding Tan’s

16   U.S. visa.        See Xue Hong Yang v. U.S. Dep’t of Justice, 426

17   F.3d 520, 522 (2d Cir. 2005).             The applicable standards of

18   review are well established.             See 8 U.S.C. § 1252(b)(4)(B);

19   Hong Fei Gao v. Sessions, 891 F.3d 67, 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 inherent plausibility of the


                                          2
1    applicant’s or witness’s account, the consistency between the

2    applicant’s or witness’s written and oral statements . . . ,

3    the internal consistency of each such statement, [and] the

4    consistency of such statements with other evidence of record

5    . . . without regard to whether an inconsistency, inaccuracy,

6    or falsehood goes to the heart of the applicant’s claim, or

7    any other relevant factor.”       8 U.S.C. § 1158(b)(1)(B)(iii);

8    Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008).

9    Substantial evidence supports the agency’s determination that

10   Tan was not credible as to his claim that he has three

11   children (two daughters and a son) in violation of China’s

12   family planning policy and that he was persecuted and fears

13   harm on that account.

14         The agency reasonably relied in part on Tan’s submission

15   to the immigration court of a fraudulent household register

16   designed to support his claim that he has three children.

17   See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)

18   (providing that an applicant’s presentation of “a single

19   false document or a single instance of false testimony may

20   (if   attributable   to   the   petitioner)”   influence   an   IJ’s

21   credibility   determination);     Borovikova   v.   U.S.   Dep’t   of

22   Justice, 435 F.3d 151, 157-58 (2d Cir. 2006) (concluding that


                                       3
1    submission      of   a   fraudulent         document   to    support     asylum

2    application      may     alone    constitute       substantial         evidence

3    warranting an adverse credibility finding); see also In re O-

4    D-, 21 I. & N. Dec. 1079, 1083 (BIA 1998) (holding that an

5    asylum applicant’s “presentation of at least one counterfeit

6    document, and probably two, submitted to prove a central

7    element of the claim in an asylum adjudication” may be relied

8    on to discredit other evidence and to find the applicant not

9    credible).

10       The agency also reasonably found the record inconsistent

11   regarding    the     purpose     of   the    fraudulent      document.        See

12   8 U.S.C. § 1158(b)(1)(B)(iii).              Tan testified variously that

13   his daughters never had another household register, that they

14   may have had an earlier register, that they had a register at

15   birth, and finally that they obtained the fraudulent register

16   when they were 6 years old so they could attend a specific

17   school.   Tan’s testimony was inconsistent with the register,

18   which provided that the daughters were registered for the

19   first time when they were 11 and 8 years old.

20       At    the    conclusion      of   Tan’s     merits      hearing,    the    IJ

21   continued proceedings to give Tan an opportunity to further

22   corroborate his claim that he has three children.                        The IJ


                                            4
1    specifically requested Tan’s daughters’ school records, their

2    birth records, a family register, and Tan’s visa application

3    for South Korea (to see if Tan listed his daughters in that

4    application).    The IJ did not err in finding that Tan failed

5    to   rehabilitate      his     claim      with     reliable     evidence

6    corroborating that he has two daughters because, despite the

7    continuance,    Tan   failed   to   supply   his    daughters’    school

8    records or his visa application as requested.            See Biao Yang

9    v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s

10   failure to corroborate his or her testimony may bear on

11   credibility, because the absence of corroboration in general

12   makes an applicant unable to rehabilitate testimony that has

13   already been called into question.”).

14        Further,   the    IJ    reasonably    declined    to     credit   the

15   evidence that Tan submitted, which included (1) hospital

16   birth certificates issued in 2012 but not submitted before

17   his 2016 hearing, (2) a 2015 household register that listed

18   Tan as head of household and included his wife, son, and

19   daughters despite his 2016 testimony that his daughters were

20   registered separately, and (3) a handwritten letter stating

21   that Tan is the father of his three children that was stamped

22   at a police station when he testified that his wife had bribed


                                         5
1    a relative who worked for the police to create fake documents.

2    See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342

3    (2d Cir. 2006) (holding that weight afforded to applicant’s

4    evidence    is    largely    within   agency    discretion);   see     also

5    Siewe,   480     F.3d   at   170    (“[W]here    an   IJ’s   finding    of

6    fabrication (supported by substantial evidence) serves as the

7    basis for discrediting other evidence, a reviewing court is

8    in no position to conclude that the discrediting of the

9    remaining evidence is unsupported by substantial evidence.”).

10   The IJ also reasonably questioned the existence of Tan’s

11   daughters given that Tan did not submit any evidence of his

12   daughters’ existence created before 2010 although they were

13   born in 1999 and 2004.        See Biao Yang, 496 F.3d at 273.

14       Given the fraud, inconsistency, and lack of corroboration

15   findings, the agency’s adverse credibility determination is

16   supported        by   substantial         evidence.      See    8 U.S.C.

17   § 1158(b)(1)(B)(iii); see also Siewe, 480 F.3d at 170; Biao

18   Yang, 496 F.3d at 273.             The credibility determination is

19   dispositive of asylum, withholding of removal, and CAT relief

20   because all three claims are based on the same factual

21   predicate.       See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

22   Cir. 2006).


                                           6
1        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

8    34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe
11                                 Clerk of Court




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