Opinion
20-448 NAC
03-15-2022
JIAN LI, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Adedayo 0. Idowu, Esq., New York, NY. FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney General, Civil Division; John S. Hogan, Assistant Director, Lindsay Corliss, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UNPUBLISHED OPINION
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of March, two thousand twenty-two.
FOR PETITIONER: Adedayo 0. Idowu, Esq., New York, NY.
FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney General, Civil Division; John S. Hogan, Assistant Director, Lindsay Corliss, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
PRESENT: ROSEMARY S. POOLER, ROBERT D. SACK, WILLIAM J. NARDINI, Clrcult Judges.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Jian Li, a native and citizen of the People's Republic of China, seeks review of a January 8, 2020, decision of the BIA affirming a May 1, 2018, decision of an Immigration Judge ("IJ") denying his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). In re Jian Li, No. A206 579 185 (B.I.A. Jan. 8, 2020), aff'g No. A206 579 185 (Immig. Ct. N.Y. City May 1, 2018). We assume the parties' familiarity with the underlying facts and procedural history.
We have considered both the IJ's and BIA's opinions "for the sake of completeness." Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review adverse credibility determinations for substantial evidence, see Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and treat the agency's findings of fact as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary," 8 U.S.C. § 1252(b)(4)(B). "Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant . . ., the inherent plausibility of the applicant's . . . account," and inconsistencies within and between an applicant's statements "without regard to whether" they go "to the heart of the applicant's claim." 8 U.S.C. § 1158(b)(1)(B)(iii). "We defer . . . to an IJ's credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling." Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). Substantial evidence supports the agency's adverse credibility determination.
First, the agency reasonably relied on Li's omission from his application of his alleged physical abuse in detention. See 8 U.S.C. § 1158(b)(1)(B)(iii); Hong Fei Gao, 891 F.3d at 78-79 ("the probative value of a witness's prior silence on particular facts depends on whether those facts are ones the witness would reasonably have been expected to disclose"). Li's use of the phrase "misery and torture" in the concluding paragraph of his application does not compel a contrary conclusion because it was not linked to his detention. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) ("A petitioner must do more than offer a plausible explanation for his inconsistent statements to secure relief; he must demonstrate that a reasonable fact-finder would be compelled to credit his testimony." (internal quotation marks omitted)).
Second, the agency also reasonably found Li's explanation for his trip to Europe implausible. See 8 U.S.C. § 1158(b)(1)(B)(iii). He alleged that he went to Europe because a travel agent told him it would help him get asylum in the United States, but the trip occurred before the events that prompted him to flee-his wife's second forced abortion and his own detention-and he could not explain how it was meant to help his asylum claim. See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (deferring to implausibility finding where "inference is made available to the factfinder by record facts, or even a single fact, viewed in the light of common sense and ordinary experience").
Finally, we defer to the IJ's conclusion that Li's demeanor undermined his credibility. See Jin Chen v. U.S. Dep't of Just., 426 F.3d 104, 113 (2d Cir. 2005) ("[T]he IJ's ability to observe the witness's demeanor places her in the best position to evaluate whether apparent problems in the witness's testimony suggest a lack of credibility or, rather, can be attributed to an innocent cause such as difficulty understanding the question."). We find no error in the IJ's reliance on Li's lack of responsiveness when questioned about his trip to Europe. Cf. Siewe, 480 F.3d at 170 (reiterating that false statements to escape persecution do not undermine credibility, but presentation of false information in immigration court does undermine credibility).
Given the inconsistency, implausibility, and demeanor findings, the agency's adverse credibility determination is supported by substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). That determination was dispositive of asylum, withholding of removal, and CAT relief because all three claims were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.