     15-4128
     Tian v. Sessions
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A205 825 148
                             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   7th day of April, two thousand seventeen.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            DENNY CHIN,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   LI GUO TIAN,
14            Petitioner,
15
16                      v.                                           15-4128
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Michael Brown, New York, NY.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Anthony
28                                       P. Nicastro, Assistant Director;
29                                       Jonathan Robbins, Senior Litigation
30                                       Counsel, Office of Immigration
31                                       Litigation, U.S. Department of
32                                       Justice, 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 is

 4   DENIED.

 5          Petitioner Li Guo Tian, a native and citizen of the People’s

 6   Republic of China, seeks review of a December 10, 2015, decision

 7   of the BIA affirming an August 20, 2014, decision of an

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

 9   withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).      In re Li Guo Tian, No. A205 825 148 (B.I.A.

11   Dec. 10, 2015), aff’g No. A205 825 148 (Immig. Ct. N.Y. City

12   Aug. 20, 2014).      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 BIA.”

15   Lianping Li v. Lynch, 839 F.3d 144, 148 (2d Cir. 2016).                       The

16   applicable standards of review are well established.                       See 8

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

18   513 (2d Cir. 2009).

19          Under the REAL ID Act of 2005, the agency may, in light of

20   “the    totality    of    the    circumstances,”         base    an       adverse

21   credibility determination on inconsistencies in an applicant’s

22   statements.       8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v.

23   Mukasey,    534    F.3d   162,   165       (2d   Cir.   2008).        A    single

                                            2
1    inconsistency or omission that goes to the heart of a claim can

2    support an adverse credibility finding.        See, e.g., Xian Tuan

3    Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 294-95 (2d Cir.

4    2006).      Applying   the   “substantial    evidence”    standard   of

5    review, “we defer . . . to an IJ’s credibility determination

6    unless, from the totality of the circumstances, it is plain that

7    no   reasonable   fact-finder     could     make   such   an   adverse

8    credibility ruling.”     Xiu Xia Lin, 534 F.3d at 167.

9         The ruling against Tian was sound.       His asylum application

10   and testimony conflicted on a central point: his location when

11   his wife was seized for her second forced abortion.         His asylum

12   application said that his wife was taken from a relative’s home

13   for a forced abortion and then returned to her home village,

14   and that, when Tian was rushing home after hearing the news,

15   he was spotted by family planning cadres who beat him and then

16   left.    By contrast, he testified that he and his wife were home

17   together and were both taken to the hospital, where she was

18   forced to have an abortion and he was beaten and detained for

19   two days.    “Drawing inferences from direct and circumstantial

20   evidence is a routine and necessary task of any factfinder.”

21   Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007).             Based

22   on Tian’s differing descriptions of his own whereabouts and his

23   beating and detention, a critical juncture of his alleged past

                                       3
1    persecution, the IJ was entitled to discredit Tian’s testimony.

2    Xian Tuan Ye, 446 F.3d at 294-95.

3          Tian characterizes the adverse credibility determination

4    as unfair, asserting that he was not given a chance to explain,

5    but   the   record   reflects      otherwise.     Moreover,    Tian’s

6    explanations were not compelling.        Majidi v. Gonzales, 430 F.3d

7    77, 80 (2d Cir. 2005) (explaining that the agency is not required

8    to credit an explanation that is merely plausible or possible).

9    Tian explained that he was captured by the cadres while he was

10   en route to the relative’s house.        Rather than clarifying the

11   sequence, these explanations muddled it: When his wife was

12   captured, was Tian on his way home, on his way to the relative’s

13   house, with his wife at the relative’s house, or in his home

14   village?    Tian asks us to remand for the agency to credit a bit

15   of all those options; but on a petition for review, our task

16   is not to supplant the agency’s judgment.       Xiao Ji Chen v. U.S.

17   Dep’t of Justice, 471 F.3d 315, 334–35 (2d Cir. 2006) (“[O]ur

18   limited role as an appellate court does not permit us to engage

19   in an independent evaluation of the cold record or ask ourselves

20   whether, if we were sitting as fact-finders in the first

21   instance,    we   would   credit    or   discredit   an   applicant’s

22   testimony.”).



                                        4
1        Tian also challenges the agency’s decision to give

2    diminished weight to the family planning committee document he

3    submitted, questioning why it was wrong to procure it for his

4    claim, and noting that there are different ways to authenticate

5    a document aside from the one laid out in agency regulations.

6    The IJ discounted the document on the ground that it was not

7    authenticated pursuant to an agency regulation, 8 C.F.R.

8    § 287.6(b).   We have deemed that reason to be insufficient.

9    Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404–05 (2d

10   Cir. 2005) (finding “that the IJ erred by rejecting the notarial

11   birth certificate based on Cao’s failure to authenticate it

12   pursuant to ‘regulation’”).    On the other hand, we give the

13   agency “considerable flexibility in determining the

14   authenticity of . . . documents from the totality of the evidence

15   and in using documents found to be authentic in making an overall

16   assessment of the credibility of a petitioner’s testimony and,

17   ultimately, of [his] persecution claim.”   Shunfu Li v. Mukasey,

18   529 F.3d 141, 149 (2d Cir. 2008).    The agency decision under

19   review--that of the BIA--questioned Tian’s document for reasons

20   beyond regulatory authentication: it was unauthenticated by any

21   means, unsigned, and obtained for purposes of the litigation.

22   That was no abuse of discretion.    Matter of H-L-H- & Z-Y-Z-,

23   25 I. & N. Dec. 209, 214 (B.I.A. 2010) (discounting village

                                    5
1    committee documents that “were obtained for the purpose of the

2    hearing, are unsigned and unauthenticated and fail to even

3    identify the authors,” and acknowledging that the regulation

4    “does not provide the exclusive means for authenticating

5    documents in immigration proceedings”), remanded on other

6    grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012);

7    see also Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)

8    (“[A] single false document or a single instance of false

9    testimony may (if attributable to the petitioner) infect the

10   balance of the alien’s uncorroborated or unauthenticated

11   evidence.”).   The document reflected that Tian’s wife had two

12   abortions, which could not serve as a basis for Tian to get

13   asylum.   Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296,

14   299–300 (2d Cir. 2007).    Even if credited, the document would

15   not cure the core inconsistency in Tian’s testimony about when,

16   where, and for how long he allegedly suffered harm.

17       For the foregoing reasons, the petition for review is

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

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

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

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

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



                                     6
1   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2   34.1(b).

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk




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