         13-2470
         Cui v. Lynch
                                                                                        BIA
                                                                                   Sichel, IJ
                                                                               A099 934 507
                             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 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 United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of August, two thousand fifteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                DEBRA ANN LIVINGSTON,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       XIANGLAN CUI,
14                Petitioner,
15
16                          v.                                  13-2470
17                                                              NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,*
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Jim Li, Flushing, New York.
24
25


                        *
                  Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Loretta E. Lynch is
             automatically substituted for former Attorney General
             Eric H. Holder, Jr., as the Respondent in this case.
 1   FOR RESPONDENT:        Stuart F. Delery, Assistant Attorney
 2                          General; Edward J. Duffy, Senior
 3                          Litigation Counsel; John M. McAdams,
 4                          Jr., Trial Attorney, Office of
 5                          Immigration Litigation, United
 6                          States Department of Justice,
 7                          Washington, D.C.
 8
 9       UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13       Xianglan Cui, a native and citizen of China, seeks

14   review of a May 28, 2013, decision of the BIA affirming an

15   Immigration Judge’s (“IJ”) March 25, 2010, decision, denying

16   her application for asylum, withholding of removal, and

17   relief under the Convention Against Torture (“CAT”).     In re

18   Xianglan Cui, No. A099 934 507 (B.I.A. May 28, 2013), aff’g

19   No. A099 934 507 (Immig. Ct. N.Y. City Mar. 25, 2010).    We

20   assume the parties’ familiarity with the underlying facts

21   and procedural history in this case.

22       Under the circumstances of this case, this Court

23   reviews the IJ’s decision, including the portions not

24   explicitly discussed by the BIA.     Yun-Zui Guan v. Gonzales,

25   432 F.3d 391, 394 (2d Cir. 2005).    The applicable standards

26   of review are well established.     See 8 U.S.C.


                                  2
 1   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

 2   (2d Cir. 2009).

 3       For applications such as Cui’s, governed by the REAL ID

 4   Act, the agency may, “[c]onsidering the totality of the

 5   circumstances,” base a credibility finding on

 6   inconsistencies in the applicant’s statements and other

 7   evidence, “without regard to whether” they go “to the heart

 8   of the applicant’s claim.”     8 U.S.C. § 1158(b)(1)(B)(iii);

 9   see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

10   2008) (per curiam).     “We defer therefore to an IJ’s

11   credibility determination unless, from the totality of the

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

13   could make such an adverse credibility ruling.”     Xiu Xia

14   Lin, 534 F.3d at 167.

15       Here, the IJ reasonably based the adverse credibility

16   determination on inconsistencies in and between Cui’s

17   testimony and documentary evidence: (1) Cui testified that

18   she was interviewed by the Chinese Democracy and Justice

19   Party (“CDJP”) about the treatment and education of ethnic

20   Koreans in China, but the only interview transcript

21   submitted to the IJ did not reflect discussion of those

22   topics; (2) she testified that Chinese public security


                                     3
 1   officials visited her husband in China four times,

 2   contradicting both an earlier statement and her application,

 3   which listed only three visits; (3) the interview transcript

 4   references the officials’ visits, but she testified that it

 5   occurred at the latest in January 2007, prior to the first

 6   visit in April 2007; and (4) she submitted copies of income

 7   tax returns for the years 2006 to 2009, but testified that

 8   she filed only one tax return and only one was stamped by

 9   the IRS.

10       The IJ reasonably rejected Cui’s explanations for these

11   inconsistencies.   Cui asserts that she was confused about

12   the date and content of the transcribed interview because

13   she had participated in numerous interviews, but she

14   testified that she did only two recordings and discussed

15   ethnic Koreans in both.   She also suggests that the

16   Government’s questioning was confusing, but the record

17   reflects that the Government clarified its questions.    As to

18   her failure to mention the fourth police visit, Cui

19   explained that she paused after listing the dates of the

20   first three visits to allow the interpreter to translate,

21   but she did not explain why she stopped mid-answer or

22   immediately thereafter mention the fourth visit, or why her



                                   4
 1   application did not list that fourth visit.     Because Cui’s

 2   explanations conflict with the record, the IJ reasonably

 3   found that the inconsistencies called Cui’s credibility into

 4   question.     See Xiu Xia Lin, 534 F.3d at 167; Majidi v.

 5   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that an

 6   IJ need not credit an explanation for an inconsistency

 7   unless the explanation would compel a reasonable fact finder

 8   to do so).

 9       In light of these inconsistencies, the IJ was entitled

10   to consider Cui’s failure to provide the following relevant,

11   reasonably available evidence as further bearing on her

12   credibility: copies of three of the four CDJP articles Cui

13   published and an affidavit from her husband to corroborate

14   her activism and the officials’ visits.      See Biao Yang v.

15   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per curiam).

16   During her hearing, Cui testified that she did not proffer

17   the articles because she published them after the December

18   2007 deadline for evidence and they were readily available

19   online.     However, the IJ reasonably rejected this

20   explanation given that she provided a copy of her first

21   article, she could have requested an extension, and it was

22   her burden to produce evidence of her eligibility for

23   relief.     See 8 U.S.C. § 1158(b)(1)(B).   Nor was the IJ
                                     5
 1   compelled to credit her explanation that she did not ask her

 2   husband for an affidavit for fear it would endanger him,

 3   because she testified that the public security officials

 4   ordered her husband to communicate their threats.     Cui for

 5   the first time challenges her attorney’s failure to request

 6   more time to file.     We decline to reach this unexhausted

 7   claim; ineffective assistance claims should first be

 8   considered by the BIA.     Arango-Aradondo v. INS, 13 F.3d 610,

 9   614 (2d Cir. 1994).     Given the inconsistencies and failure

10   to provide reasonably available evidence, the IJ reasonably

11   found that Cui lacked credibility.     See Xiu Xia Lin, 534

12   F.3d at 167.

13       Given Cui’s lack of credibility, the only evidence

14   supporting her application was her fellow CDJP member’s

15   testimony, a CDJP membership certificate, the interview

16   transcript, her first article, and photographs of Cui from

17   the CDJP website.     None of this evidence resolves her

18   credibility problems because it does not demonstrate that

19   the Chinese government is aware of her alleged political

20   activities.    “[I]n order to establish eligibility for relief

21   based exclusively on activities undertaken after [her]

22   arrival in the United States, an alien must make some

23   showing that authorities in [her] country of nationality are
                                     6
 1   (1) aware of [her] activities or (2) likely to become aware

 2   of [her] activities.”   Hongsheng Leng v. Mukasey, 528 F.3d

 3   135, 138 (2d Cir. 2008) (per curiam).    Nor did the other

 4   evidence satisfy Cui’s burden.    The evidence of Cui’s CDJP

 5   membership and articles, absent a corroborating affidavit

 6   from her husband that the Chinese government discovered

 7   these items, did not establish that the Chinese government

 8   would learn about her CDJP activities.    See Y.C. v. Holder,

 9   741 F.3d 324, 337 (2d Cir. 2013) (deeming internet

10   publications insufficient to establish likelihood

11   authorities would learn about petitioner’s U.S. activities).

12   Despite Cui’s argument that her background evidence

13   established that she would be targeted as a CDJP member,

14   that evidence mentioned the banning only of the CDP, a

15   distinct organization, and only four arrests of CDJP

16   members, two of which were precipitated by actions taken in

17   China.   Because her documentary evidence did not

18   rehabilitate her testimony, the agency did not err in

19   finding that Cui failed to meet her burden of proof.     See 8

20   U.S.C. § 1158(b)(1)(B)(ii).

21       All of Cui’s claims are based on the same factual

22   predicate.   As a result, her lack of credibility is

23

                                   7
 1   dispositive as to asylum, withholding of removal, and CAT

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

 3       For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted in this petition

 6   is VACATED, and any pending motion for a stay of removal in

 7   this petition is DISMISSED as moot.    Any pending request for

 8   oral argument in this petition is DENIED in accordance with

 9   Federal Rule of Appellate Procedure 34(a)(2), and Second

10   Circuit Local Rule 34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk
13
14
15




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