Li v. Whitaker

17-1092 Li v. Whitaker BIA Poczter, IJ A073 609 691 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 22nd day of January, two thousand nineteen. [5] 6 PRESENT: 7 BARRINGTON D. PARKER, 8 DENNY CHIN, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ [12] 13 GUANGZHAO LI, 14 Petitioner, [15] 16 v. 17-1092 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ [22] 23 FOR PETITIONER: Gerald Karikari, New York, NY. [24] 25 FOR RESPONDENT: Chad A. Readler, Principle Deputy 26 Assistant Attorney General; Leslie 27 McKay, Senior Litigation Counsel; 28 Siu P. Wong, Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of 31 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 4 is DENIED. 5 Petitioner Guangzhao Li, a native and citizen of the 6 People’s Republic of China, seeks review of a March 29, 2017, 7 decision of the BIA affirming a May 24, 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 Guangzhao Li, No. A073 609 691 (B.I.A. Mar. 11 29, 2017), aff’g No. A073 609 691 (Immig. Ct. N.Y. City May 12 24, 2016). We assume the parties’ familiarity with the 13 underlying facts and procedural history in this case. 14 Under the circumstances of this case, we have considered 15 both the IJ’s and the BIA’s opinions “for the sake of 16 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 17 524, 528 (2d Cir. 2006). The applicable standards of review 18 are well established. See 8 U.S.C. § 1252 (b)(4)(B); Xiu Xia 19 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per 20 curiam)(applying substantial evidence review to factual 21 findings). [2] 1 Substantial evidence supports the agency’s 2 determination that Li was not credible. And, even assuming 3 Li’s credibility as to his practice of Christianity, Li did 4 not establish a pattern or practice of persecution of 5 underground Christian church participants in his home 6 province of Fujian. Each issue is discussed in turn. 7 Adverse Credibility Determination 8 “Considering the totality of the circumstances, and all 9 relevant factors, a trier of fact may base a credibility 10 determination on . . . the consistency between the applicant’s 11 . . . written and oral statements . . . , the internal 12 consistency of each such statement, [and] the consistency of 13 such statements with other evidence of record . . . without 14 regard to whether an inconsistency, inaccuracy, or falsehood 15 goes to the heart of the applicant’s claim.” 8 U.S.C. 16 § 1158(b)(1)(B)(iii); see also Hong Fei Gao v. Sessions, 891 17 F.3d 67, 77 (2d Cir. 2018); Xiu Xia Lin, 534 F.3d at 163-64 . 18 The adverse credibility determination is supported by 19 substantial evidence given the multiple inconsistencies in 20 Li’s statements and evidence. 21 Li was inconsistent about the sole allegation of past 22 persecution in April 2012. He was inconsistent about the [3] 1 number of worshippers who were arrested with him, the details 2 of his three interrogations in detention, where and what the 3 police used to beat him, the number of days he was detained, 4 how long he remained in China after his release from 5 detention, and who baptized him in China. See 8 U.S.C. 6 § 1158(b)(1)(B)(iii). All of these inconsistencies are 7 reflected in the record. And Li did not provide compelling 8 explanations or otherwise rehabilitate his testimony with 9 reliable corroborating evidence. See Majidi v. Gonzales, 430 10 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than 11 offer a plausible explanation for his inconsistent statements 12 to secure relief; he must demonstrate that a reasonable fact- 13 finder would be compelled to credit his testimony.” (internal 14 quotation marks omitted)); see also Biao Yang v. Gonzales, 496 15 F.3d 268, 273 (2d Cir. 2007) (per curiam) (“An applicant’s 16 failure to corroborate his or her testimony may bear on 17 credibility, because the absence of corroboration in general 18 makes an applicant unable to rehabilitate testimony that has 19 already been called into question.”). 20 Given the multiple inconsistencies and the lack of 21 reliable corroboration, the adverse credibility determination 22 is supported by substantial evidence. See Xiu Xia Lin, 534 [4] 1 F.3d at 165-66. That determination is dispositive of asylum, 2 withholding of removal, and CAT relief because all three 3 claims are based on the same factual predicate. See Paul v. 4 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 5 Although this adverse credibility determination is 6 dispositive, the BIA addressed Li’s claim that there is a 7 pattern or practice of persecution of Christians in China. 8 As discussed below, we find no error in the agency’s 9 conclusion that Li failed to establish a pattern or practice 10 of persecution. 11 Pattern and Practice Claim 12 Even assuming Li’s credibility as to his ongoing 13 practice of Christianity, he failed to document the 14 “systemic or pervasive” persecution of Christians 15 sufficient to demonstrate a pattern or practice of 16 persecution of similarly situated individuals in China. 17 See 8 C.F.R. § 1208.13 (b)(2)(iii); In re A-M-, 23 I. & N. 18 Dec. 737, 741 (BIA 2005) (explaining that pattern or 19 practice of persecution requires “systemic or pervasive” 20 persecution). The country conditions evidence in the 21 record established that tens of millions of individuals 22 practice in unregistered churches in China, and that in [5] 1 some areas such practice is tolerated without interference. 2 Further, the record includes no evidence of mistreatment of 3 Christians in Li’s home province of Fujian. See Jian Hui 4 Shao v. Mukasey, 546 F.3d 138, 165-66, 174 (2d Cir. 2008) 5 (explaining that the BIA does not err in requiring 6 localized evidence of persecution when the record reflects 7 wide variances in how policies are understood and enforced 8 throughout China). 9 For the foregoing reasons, the petition for review is 10 DENIED. 11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, 13 Clerk of Court