18-3381
     Li v. Rosen
                                                                                   BIA
                                                                             Zagzoug, IJ
                                                                           A206 054 736
                        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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 4th day of January, two thousand twenty-one.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            ROBERT D. SACK,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   XIAO FANG LI,
14            Petitioner,
15
16                 v.                                            18-3381
17                                                               NAC
18   JEFFREY A. ROSEN, ACTING UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent. 1
21   _____________________________________
22
23   FOR PETITIONER:                  John S. Yong, Esq., New York, NY.
24
25   FOR RESPONDENT:                  Jeffrey Bossert Clark, Acting
26                                    Assistant Attorney General; Mary

     1
      Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
     Acting Attorney General Jeffrey A. Rosen is automatically
     substituted for former Attorney General William P. Barr as
     Respondent.
 1                                    Jane Candaux, Assistant Director;
 2                                    Stephanie E. Beckett, Trial
 3                                    Attorney, Office of Immigration
 4                                    Litigation, United States
 5                                    Department of Justice, Washington,
 6                                    DC.

 7       UPON DUE CONSIDERATION of this petition for review of a

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

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

10   is DENIED.

11       Petitioner Xiao Fang Li, a native and citizen of the

12   People’s Republic of China, seeks review of an October 24,

13   2018, decision of the BIA that affirmed an October 24, 2017,

14   decision    of   an   Immigration      Judge      (“IJ”)    denying     asylum,

15   withholding      of   removal,   and       relief   under    the   Convention

16   Against Torture (“CAT”), and denied Li’s motion to remand.

17   In re Xiao Fang Li, No. A206 054 736 (B.I.A. Oct. 24, 2018),

18   aff’g No. A206 054 736 (Immig. Ct. N.Y. City Oct. 24, 2017).

19   We assume the parties’ familiarity with the underlying facts

20   and procedural history.

21       Under     the     circumstances,        we   have   reviewed       the   IJ’s

22   decision    as   supplemented     by       the   BIA.      See   Yan    Chen   v.

23   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

24

                                            2
 1     A. Adverse Credibility Determination

 2       The applicable standards of review are well established.

 3   See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891

 4   F.3d 67, 76 (2d Cir. 2018).    “Considering the totality of the

 5   circumstances, and all relevant factors, a trier of fact may

 6   base a credibility determination on the demeanor, candor, or

 7   responsiveness of the applicant or witness, the inherent

 8   plausibility of the applicant’s or witness’s account, the

 9   consistency between the applicant’s or witness’s written and

10   oral statements . . . , the internal consistency of each such

11   statement . . . without regard to whether an inconsistency,

12   inaccuracy, or falsehood goes to the heart of the applicant’s

13   claim,   or   any   other     relevant   factor.”      8 U.S.C.

14   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534

15   F.3d 162, 163–64 (2d Cir. 2008).    “We defer . . . to an IJ’s

16   credibility determination unless, from the totality of the

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

18   could make such an adverse credibility ruling.”     Xiu Xia Lin,

19   534 F.3d at 167; accord Hong Fei Gao, 891 F.3d at 76.

20   Substantial evidence supports the agency’s determination that

21   Li was not credible as to her claim that police detained and


                                     3
 1   beat her and sought to arrest her a second time for practicing

 2   Christianity in an unregistered church in China.

 3        The IJ reasonably relied in part on Li’s flat, hesitant,

 4   and evasive demeanor.       See 8 U.S.C. § 1158(b)(1)(B)(iii); see

 5   also Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).

 6   That finding is supported by the record, which shows Li’s

 7   lengthy pauses and failure to respond to questions despite

8    affirmation that she understood the questions being posed.

9    Further,   Li’s   longest    pauses    and   lack   of   responsiveness

10   occurred when she was asked to provide details material to

11   her claim of past persecution, which she never provided, or

12   was questioned about implausible aspects of her story.             The

13   IJ was not compelled to credit Li’s explanation that she was

14   nervous because her nervousness did not prevent her from

15   answering general questions about her claim and her inability

16   to provide details despite multiple opportunities further

17   impugned her credibility.        See Majidi, 430 F.3d at 80 (“A

18   petitioner must do more than offer a plausible explanation

19   for his inconsistent statements to secure relief; he must

20   demonstrate that a reasonable fact-finder would be compelled

21   to   credit   his    testimony.”       (internal     quotation    marks


                                        4
 1   omitted)); see also Jin Shui Qiu v. Ashcroft, 329 F.3d 140,

 2   152 (2d Cir. 2003) (“Where an applicant gives very spare

 3   testimony . . . the IJ . . .                  may fairly wonder whether the

 4   testimony       is    fabricated.”),          overruled      in    part     on    other

 5   grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d

 6   296, 305 (2d Cir. 2007).

 7          The   IJ’s      demeanor      finding      and     adverse        credibility

 8   determination as a whole were further supported by Li’s

 9   inconsistent and implausible testimony regarding the severity

10   of her beating and her ability to travel unrestricted while

11   police       sought          to     arrest       her.              See      8 U.S.C.

12   § 1158(b)(1)(B)(iii); see also Li Hua Lin v. U.S. Dep’t of

13   Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still

14   more    confident       in    our    review     of   observations           about    an

15   applicant’s demeanor where, as here, they are supported by

16   specific examples of inconsistent testimony.”).

17          Having        questioned      Li’s       credibility,          the        agency

18   reasonably       relied       on    her   failure       to    rehabilitate          her

19   credibility          with    reliable     corroborating           evidence.         “An

20   applicant’s failure to corroborate his or her testimony may

21   bear on credibility, because the absence of corroboration in


                                               5
 1   general makes an applicant unable to rehabilitate testimony

 2   that has already been called into question.”                Biao Yang v.

 3   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).                 First, the IJ

 4   reasonably      noted     that    a   letter   from     Li’s    purported

 5   underground church in China did not corroborate her claim and

 6   further impugned her credibility because it was written on

 7   printed letterhead and stamped with an official church seal

 8   even though the church was unregistered and secretive and the

 9   letter did not mention the two raids on the church or the

10   arrest of practitioners.          See Y.C. v. Holder, 741 F.3d 324,

11   334 (2d Cir. 2013) (“We defer to the agency’s determination

12   of the weight afforded to an alien’s documentary evidence.”);

13   see also Hong Fei Gao, 891 F.3d at 78 (“The probative value

14   of a witness’s . . . silence on particular facts depends on

15   whether those facts are ones the witness would reasonably

16   have   been    expected     to    disclose.”).        The    agency    also

17   reasonably     declined    to    credit   unsworn   letters    from    Li’s

18   father and church friend in China, her boyfriend’s testimony

19   about their church attendance in the United States, and a

20   letter from a church elder in the United States because this

21   evidence      was   provided     by   interested      witnesses   or     by


                                           6
 1   individuals    who     were    not        made   available   for    cross-

 2   examination.     See Y.C., 741 F.3d at 332, 334; see also In re

 3   H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)

 4   (finding that letters from alien’s friends and family were

 5   insufficient   to    provide    substantial        support   for   alien’s

 6   claims   because     they   were     from    interested   witnesses   not

 7   subject to cross-examination), overruled on other grounds by

 8   Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012).

 9       Given the demeanor, inconsistency, implausibility, and

10   corroboration findings, the adverse credibility determination

11   is supported by substantial evidence.              See Xiu Xia Lin, 534

12   F.3d at 165–66.      That determination is dispositive of asylum,

13   withholding of removal, and CAT relief because all three

14   claims are based on the same factual predicate.              See Paul v.

15   Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).               Accordingly,

16   we do not consider the agency’s alternative burden finding.

17   See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general

18   rule courts and agencies are not required to make findings on

19   issues the decision of which is unnecessary to the results

20   they reach.”).

21


                                           7
 1     B. Motion to Remand

 2       We review the BIA’s denial of a motion to remand for

 3   abuse of discretion.    Li Yong Cao v. U.S. Dep’t of Justice,

 4   421 F.3d 149, 157 (2d Cir. 2005).    The BIA may deny a motion

 5   to remand based on a movant’s failure to show prima facie

 6   eligibility   for   relief.    See   id.;   see   also   8 C.F.R.

 7   § 1003.2(c)(1).     The BIA did not abuse its discretion in

 8   denying Li’s motion to remand to adjust to lawful permanent

9    resident status because, as she admits in her opening brief,

10   she is not currently eligible for that relief.      See Li Yong

11   Cao, 421 F.3d at 156.

12       For the foregoing reasons, the petition for review is

13   DENIED.   All pending motions and applications are DENIED and

14   stays VACATED.

15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe,
17                                 Clerk of Court




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