Gu v. Garland

20-2991 Gu v. Garland BIA Wright, IJ A200 181 197 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 21st day of November, two thousand twenty5 two. [6] 7 PRESENT: 8 GERARD E. LYNCH, 9 MICHAEL H. PARK, 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ [13] 14 XIAOLING GU, 15 Petitioner, [16] 17 v. 20-2991 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ [24] 25 FOR PETITIONER: Aleksander Boleslaw Milch, Esq., 26 The Kasen Law Firm, PLLC, 27 Flushing, NY. [28] 1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 2 Attorney General; Mary Jane 3 Candaux, Assistant Director, 4 Office of Immigration Litigation; 5 Stephen Finn, Trial Attorney, 6 Office of Immigration Litigation, 7 United States Department of 8 Justice, Washington, DC. 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 Petitioner Xiaoling Gu, a native and citizen of the 14 People’s Republic of China, seeks review of an August 14, 15 2020, decision of the BIA affirming an August 20, 2018, 16 decision of an Immigration Judge (“IJ”) denying her 17 application for asylum, withholding of removal, and relief 18 under the Convention Against Torture (“CAT”). Xiaoling Gu, 19 No. A200 181 197 (B.I.A. Aug. 14, 2020), aff’g No. A200 181 20 197 (Immig. Ct. N.Y. City Aug. 20, 2018). We assume the 21 parties’ familiarity with the underlying facts and procedural 22 history. 23 We have reviewed the IJ’s decision as supplemented and 24 modified by the BIA’s decision. See Xue Hong Yang v. U.S. 25 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen [2] 1 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable 2 standards of review are well established. “[T]he 3 administrative findings of fact are conclusive unless any 4 reasonable adjudicator would be compelled to conclude to the 5 contrary.” 8 U.S.C. § 1252 (b)(4)(B). “Accordingly, we 6 review the agency’s decision for substantial evidence and 7 must defer to the factfinder’s findings based on such relevant 8 evidence as a reasonable mind might accept as adequate to 9 support a conclusion. . . . By contrast, we review legal 10 conclusions de novo.” Singh v. Garland, 11 F.4th 106 , 113 11 (2d Cir. 2021) (internal quotation marks omitted); see also 12 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) 13 (reviewing adverse credibility determination “under the 14 substantial evidence standard”). 15 “[A] trier of fact may base a credibility determination 16 on the . . . consistency between the applicant’s . . . 17 written and oral statements.” 8 U.S.C. 18 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 19 credibility determination unless . . . it is plain that no 20 reasonable fact-finder could make such an adverse credibility 21 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. [3] 1 2008); accord Hong Fei Gao, 891 F.3d at 76 . 2 Substantial evidence supports the adverse credibility 3 determination in this case. In a written statement attached 4 to her application for asylum, withholding of removal, and 5 CAT relief, Gu alleged that police raided a meeting of her 6 underground Christian church and arrested her and others, and 7 that she was “beaten and insulted and detained for three 8 days.” However, she testified before the IJ that she was not 9 beaten. This contradiction about the sole incident of 10 alleged persecution provides substantial evidence for the 11 adverse credibility determination. See Xian Tuan Ye v. Dep’t 12 of Homeland Sec., 446 F.3d 289, 294 (2d Cir. 2006) (“Where 13 the IJ’s adverse credibility finding is based on specific 14 examples in the record of inconsistent statements . . . about 15 matters material to his claim of persecution . . . a reviewing 16 court will generally not be able to conclude that a reasonable 17 adjudicator was compelled to find otherwise.” (quotation 18 marks omitted)). 19 Gu’s explanation that she was not referring to a physical 20 attack when she wrote the word beaten, but instead meant that 21 she was exhausted and demoralized, does not compel a contrary [4] 1 conclusion. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2 2005) (“A petitioner must do more than offer a plausible 3 explanation for his inconsistent statements to secure relief; 4 he must demonstrate that a reasonable fact-finder would be 5 compelled to credit his testimony.” (quotation marks 6 omitted)). Gu does not support this explanation with 7 evidence that the statement she wrote in Chinese should have 8 been translated differently. Id.; see also Siewe v. 9 Gonzales, 480 F.3d 160 , 167–68 (2d Cir. 2007) (“Where there 10 are two permissible views of the evidence . . . a reviewing 11 court must defer to . . . [the factfinder’s] choice so long 12 as the deductions are not illogical or implausible.” 13 (quotation marks and citation omitted)). Gu did not exhaust 14 her argument that the IJ had a responsibility to further 15 develop the record, see Steevenez v. Gonzales, 476 F.3d 114 , 16 117 (2d Cir. 2007) (“To preserve an issue for judicial review, 17 the petitioner must first raise it with specificity before 18 the BIA.”), and counsel for the Department of Homeland 19 Security questioned her extensively about the discrepancy. 20 In sum, the inconsistency about the sole incident of 21 alleged harm provides substantial evidence for the adverse [5] 1 credibility determination. See Xiu Xia Lin, 534 F.3d at 167 ; 2 Xian Tuan Ye, 446 F.3d at 294 . The adverse credibility 3 determination is dispositive because asylum, withholding of 4 removal, and CAT relief were based on the same factual 5 predicate. See Paul v. Gonzales, 444 F.3d 148 , 156–57 (2d 6 Cir. 2006). 7 For the foregoing reasons, the petition for review is 8 DENIED. All pending motions and applications are DENIED and 9 stays VACATED. 10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court