     07-0963-ag
     Ying Li v. BCIS



                         UNITED STATES COURT OF APPEALS
 1
 2                          FOR THE SECOND CIRCUIT
 3
 4                             August Term, 2007
 5
 6   (Argued: April 23, 2008                   Decided: June 10, 2008)
 7
 8                           Docket No. 07-0963-ag
 9
10   - - - - - - - - - - - - - - - - - - - -x
11
12   YING LI,
13
14                     Petitioner,
15
16               - v.-
17
18   BUREAU OF CITIZENSHIP AND IMMIGRATION
19   SERVICES,
20
21                     Respondent.
22
23   - - - - - - - - - - - - - - - - - - - -x
24

25         Before:          JACOBS, Chief Judge, KEARSE and KATZMANN,
26                          Circuit Judges.
27
28         In this review of a decision of the Board of

29   Immigration Appeals summarily affirming an immigration

30   judge’s (“IJ”) denial of a petition for asylum, withholding

31   of removal, and protection under the Convention Against

32   Torture, we hold that the IJ’s adverse credibility

33   determination, based on implausibility, is supported by

                                       1
1    substantial evidence.   While explanations are available for

2    features of petitioner’s account that were found

3    implausible, we review the entire record, not whether each

4    unusual feature of the account can be explained or

5    rationalized.   See Borovikova v. U.S. Dep’t of Justice, 435

 6   F.3d 151, 161 (2d Cir. 2006).       T he petition is denied.
 7
 8                                 Lorance Hockert, New York, NY,
 9                                 for Petitioner.
10
11                                 Susan K. Houser, Senior
12                                 Litigation Counsel, Office of
13                                 Immigration Litigation, Civil
14                                 Division, United States
15                                 Department of Justice (Peter D.
16                                 Keisler, Assistant Attorney
17                                 General, and Lisa M. Arnold,
18                                 Senior Litigation Counsel, on
19                                 the brief), Washington, DC, for
20                                 Respondent.
21
22   DENNIS JACOBS, Chief Judge:
23
24       Petitioner Ying Li, a native and citizen of the

25   People’s Republic of China, seeks review of a summary

26   affirmance by the Board of Immigration Appeals (“BIA”) of

27   the oral decision of an immigration judge (“IJ”), which

28   denied her application for asylum, withholding of removal,

29   and protection under the Convention Against Torture (“CAT”).

30   In re Li, Ying, No. A 95 688 247 (B.I.A. Feb. 20, 2007),

31   aff’g No. A 95 688 247 (Immig. Ct. New York City, Aug. 9,


                                     2
1    2005).   Li’s asylum application is premised on her claim

2    that the Chinese government persecuted her for supporting

3    Falun Gong .    The IJ determined that Li was not credible,

4    chiefly on the ground that her account is implausible, and

5    denied her applications on that basis.

6         We conclude that the IJ’s adverse credibility

7    determination is supported by substantial evidence.       The IJ

8    relied on several “valid” and “cogent” reasons for rejecting

9    Li’s testimony as implausible.       See Ming Xia Chen v. BIA,

10   435 F.3d 141, 145 (2d Cir. 2006).       While explanations are

11   available for features of petitioner’s account that were

12   found implausible, we review the entire record, not whether

13   each unusual feature of the account can be explained or

14   rationalized.     See Borovikova v. U.S. Dep’t of Justice, 435

15   F.3d 151, 161 (2d Cir. 2006).       The IJ could conclude that

16   Li’s account, taken all in all, is implausible; and so we

17   cannot say that any reasonable adjudicator would be

18   compelled to conclude that she testified credibly.

19   Accordingly, t he petition is denied.

20

21                                   I

22        Ying Li was placed in removal proceedings in January


                                     3
1    2005 when she attempted to enter the United States without

2    valid travel documents.   Li applied for asylum, withholding

3    of removal, and relief under the CAT, claiming that the

4    Chinese government persecuted her for her involvement with

5    Falun Gong.

6        Li’s account–-as set forth in her asylum application

7    and at her merits hearing–-is as follows:

8                  Her uncle’s friend, a practitioner, introduced

9             her to Falun Gong.   Although Li had only a “basic

10            understanding” of Falun Gong, she was “very

11            interested” in it because “it [is] a good

12            practice” and is beneficial to physical and mental

13            health.   Li promoted Falun Gong “because [she]

14            believed that [Falun] Gong was not an evil cult.”

15            However, Li was too busy with her studies to learn

16            or practice Falun Gong in China.

17                 After the Chinese government declared Falun

18            Gong an “evil cult,” her uncle’s friend went into

19            hiding.   Li thought that the Chinese government

20            “should not suppress and persecute Falun Gong

21            followers, who were kind and innocent.”     Li, a

22            student at the Fuzhou City Industrial School,



                                   4
1    would sometimes promote among her classmates

2    opposition to the government’s suppression of

3    Falun Gong.   In September 2003, school officials

4    forcibly detained her for seven hours, beat her,

5    and forced her to sign a letter promising that she

6    would end her involvement with Falun Gong.

7        When her uncle’s friend visited her in August

8    2004, he encouraged Li to continue her support.

9    This individual visited Li’s family home about

10   twenty times over a four to six week period.      In

11   September 2004, while Li was away, the police came

12   to her home to arrest her.    They told her father

13   that someone had reported that she “colluded with

14   Falun Gong followers,” and they challenged him

15   when he denied that she was member of Falun Gong.

16   According to Li, “[g]overnment officials pursued

17   me everywhere, [and] threatened my family to

18   disclose my whereabouts.”    Subsequently, Li’s

19   family arranged for her to leave China.    In the

20   United States, Li practices Falun Gong two to

21   three times per week.    She fears returning to

22   China because “the Chinese government would arrest



                          5
1              me, sentence me, and further persecute me” for

2              being involved with Falun Gong.

3        The IJ denied Li’s application for asylum, withholding

4    and CAT protection, reasoning, as described in Part III.B

5    below: “None of this testimony is plausible or credible to

6    the Court and, therefore, the Court does not believe that

7    the respondent has presented testimony to which I can give

8    credence.”     In February 2007, the BIA summarily affirmed.

9

10                                   II

11       In considering an application for asylum, withholding

12   of removal, and CAT protection, the agency generally must

13   make a credibility finding; failure to do so may be a ground

14   for vacatur.     See Diallo v. INS, 232 F.3d 279, 290 (2d Cir.

15   2000).   Although Li asserts on appeal that the IJ failed to

16   make an adverse credibility determination, she did not

17   exhaust this issue before the BIA; to the contrary, her

18   submission to the BIA challenged the adverse credibility

19   determination that the IJ made.      We decline to consider this

20   argument on appeal, and deem it forfeited.      See Lin Zhong v.

21   U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007).

22


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1                                  III

2        In the alternative, Li challenges the IJ’s adverse

3    credibility determination.

4                                   A

5        When the BIA summarily affirms an IJ decision, we

6    review the IJ decision as the final agency determination.

7    Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005).    We review the

8    agency’s factual findings, including an adverse credibility

9    determination, under the substantial evidence standard,

10   treating them as “conclusive unless any reasonable

11   adjudicator would be compelled to conclude to the contrary.”

12   8 U.S.C. § 1252(b)(4)(B).    “In cases like this one, in which

13   the IJ bases her denial of asylum on a finding that a

14   petitioner’s application is not credible, our review is

15   especially limited and highly deferential.”    Borovikova, 435

16   F.3d at 156 (internal quotation marks omitted); see also Jin

17   Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.

18   2005) (“We afford particular deference in applying the

19   substantial evidence standard when reviewing an IJ’s

20   credibility findings.” (internal quotation marks omitted)).

21       “When an IJ has supported an ultimate finding that an

22   applicant’s testimony was not credible by concluding that


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1    significant aspects of the testimony were implausible, the

2    decisions of our Court have not been entirely consistent.”

3    Ming Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir. 2006).       For

4    example, “we have cited approvingly the BIA’s view that an

5    adverse credibility finding may be based on ‘inherently

6    improbable testimony.’”   Id. (quoting Diallo v. INS, 232

7    F.3d 279, 287-88 (2d Cir. 2000)); see In re S-M-J-, 21 I. &

8    N. Dec. 722, 729 (B.I.A. 1997) (“Adverse credibility

9    determinations are appropriately based on inconsistent

10   statements, contradictory evidence, and inherently

11   improbable testimony . . . .”).    But we have also said that

12   an “IJ must point to valid, or specific, cogent reasons for

13   rejecting an applicant’s testimony and may not reject

14   testimony based on speculation.”    Ming Xia Chen, 435 F.3d at

15   145 (internal quotation marks and citations omitted).     To be

16   sure, “the line between reasonable inference-drawing and

17   speculation is imprecise,” Guo-Le Huang v. Gonzales, 453

18   F.3d 142, 147 (2d Cir. 2006), and we do not undertake such a

19   delineation here.   Nevertheless, we must decide on which

20   side of this blurry divide Li’s case falls.    See Ming Xia

21   Chen, 435 F.3d at 145.

22                                 B



                                   8
1        The IJ found Li’s account implausible because:

2                 [1] Li claimed to promote Falun Gong for over

3             six years (beginning at age 14) without ever

4             learning or practicing it herself.

5                 [2] The police sought to arrest Li, a teenager

6             who never studied or practiced Falun Gong in

7             China; yet her uncle’s friend, a Falun Gong

8             practitioner, openly visited her home twenty times

9             and was never arrested.

10                [3] Li was able to depart China from the

11            airport using her own passport.

12                [4] At her hearing, Li recited only

13            “elementary information” about Falun Gong and

14            presented photographs of herself practicing Falun

15            Gong which were, as Li acknowledged, taken on a

16            single occasion.

17       Li responds that [1] she can claim persecution on

18   account of her support for Falun Gong without practicing it;

19   [2] nothing indicates that Li’s neighbors or the authorities

20   knew that she was discussing Falun Gong with her uncle’s

21   friend; [3] she was probably able to leave China on her own

22   passport because she was wanted by local, not national



                                  9
1    authorities; and [4] she answered every question asked

2    regarding her present involvement with Falun Gong.

3        Some features of Li’s account that were doubted by the

4    IJ can be rationalized or subjected to useful further

5    inquiry and analysis.   But when an adverse credibility

6    finding is based partly or entirely on implausibility, we

7    review the entire record, not whether each unusual or

8    implausible feature of the account can be explained or

9    rationalized.   See Borovikova, 435 F.3d at 161 (“When an IJ

10   bases an adverse credibility finding on multiple grounds, we

11   review the totality of the IJ’s decision, instead of

12   dissecting the IJ’s opinion and reviewing each portion in

13   isolation.”); cf. Liang Chen v. U.S. Atty. Gen., 454 F.3d

14   103, 106-07 (2d Cir. 2006) (explaining that an IJ “may rely

15   upon the cumulative impact” of inconsistencies “and may

16   conduct an overall evaluation of testimony in light of its

17   rationality or internal consistency and the manner in which

18   it hangs together with other evidence” (internal quotation

19   marks and citations omitted)).

20       On the basis of the entire record, we cannot disturb

21   the IJ’s finding that Li’s account is implausible.     The

22   picture that emerges is of a student who promoted Falun Gong



                                   10
1    among her classmates (but did not practice it), who was

2    harassed by local officials (alone among her family), who

3    met with a Falun Gong practitioner repeatedly and openly

4    (although he was never arrested), and who successfully quit

5    the country using her own passport (despite allegations of

6    nationwide persecution).   Still other implausibilities

7    inhere in Li’s account–-for example, if Li was able to leave

8    China on her own passport because she was wanted only by

9    local authorities (as Li contends), why didn’t she go to the

10   next village or elsewhere in that capacious land?

11       There are available explanations.   A person could, out

12   of affection for a friend or altruistic commitment to

13   liberty, risk her safety or give up her country for

14   something she does not thoroughly understand or practice.

15   Cf. Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir. 2006)

16   (“[P]eople can identify with a certain religion,

17   notwithstanding their lack of detailed knowledge about that

18   religion’s doctrinal tenets, and . . . those same people can

19   be persecuted for their religious affiliation.”).     And it is

20   possible that the Chinese authorities identified a high

21   school student, and laid a dragnet for her, while failing to

22   locate her friend’s uncle, an adult who practices and



                                   11
1    proselytizes.   And she might have thought she could give the

2    police the slip at the airport (and did) even while using

3    her own passport to leave the country.

4        At the same time, these available possibilities do not

5    defeat a finding that the account is implausible.      Features

6    of the account are somewhat surprising.      Moreover, the

7    contours of the narrative are drawn in a way that evades

8    corroboration to an unusual extent.      Her account is one that

9    could be established solely by perjury, permitting an

10   inference of fabrication.

11       In light of the overall implausibility of Li’s account,

12   we cannot say that any reasonable adjudicator would be

13   compelled to conclude that Li testified credibly.      See 8

14   U.S.C. § 1252(b)(4)(B).     Accordingly, we uphold the IJ’s

15   adverse credibility determination and denial of Li’s

16   applications.

17

18                               *   *    *

19       For the foregoing reasons, we deny the petition for

20   review.   Having completed our review, the pending motion for

21   a stay of removal in this petition is denied as moot.




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