Shi v. Barr BIA Poczter, IJ A202 037 191

18-2218
Shi v. Barr
BIA
Poczter, IJ
A202 037 191
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.

At a stated term of the United States Court of Appeals 1
for the Second Circuit, held at the Thurgood Marshall 2
United States Courthouse, 40 Foley Square, in the City of 3
New York, on the 17
th
day of April, two thousand twenty. 4
5
PRESENT: 6
JOSÉ A. CABRANES, 7
GERARD E. LYNCH, 8
MICHAEL H. PARK, 9
Circuit Judges. 10
_____________________________________ 11
12
YUAN LAN SHI, 13
Petitioner, 14
15
v. 18- 2218 16
NAC 17
WILLIAM P. BARR, UNITED STATES 18
ATTORNEY GENERAL, 19
Respondent. 20
_____________________________________ 21
22
FOR PETITIONER: Richard Tarzia, Esq., Belle Mead, 23
NJ. 24
25
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 26
General; Cindy S. Ferrier, 27
Assistant Director; Andrew N. 28

2

O’Malley, Senior Litigation 1
Counsel, Office of Immigration 2
Litigation, United States 3
Department of Justice, Washington, 4
DC. 5
UPON DUE CONSIDERATION of this petition for review of a 6
Board of Immigration Appeals (“BIA”) decision, it is hereby 7
ORDERED, ADJUDGED, AND DECREED that the petition for review 8
is DENIED. 9
Petitioner Yuan Lan Shi, a native and citizen of China, 10
seeks review of a July 17, 2018, decision of the BIA affirming 11
an August 8, 2017, decision of an Immigration Judge (“IJ”) 12
denying Shi’s application for asylum, withholding of removal, 13
and relief under the Convention Against Torture (“CAT”). In 14
re Yuan Lan Shi, No. A 202 037 191 (B.I.A. Jul. 17, 2018), 15
aff’g No. A 202 037 191 (Immig. Ct. N.Y. City Aug. 8, 2017). 16
We assume the parties’ familiarity with the underlying facts 17
and procedural history in this case. 18
We have reviewed both the IJ’s and the BIA’s decisions 19
“for the sake of completeness.” Wangchuck v. Dep’t of 20
Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The 21
applicable standards of review are well established. See 8 22
U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 23
67, 76 (2d Cir. 2018) (reviewing adverse credibility 24

3

determination for substantial evidence). 1
“Considering the totality of the circumstances, and all 2
relevant factors, a trier of fact may base a credibility 3
determination on the demeanor, candor, or responsiveness of 4
the applicant . . . , the consistency between the applicant’s 5
. . . written and oral statements . . . , the internal 6
consistency of each such statement, [and] the consistency of 7
such statements with other evidence of record . . . without 8
regard to whether an inconsistency, inaccuracy, or falsehood 9
goes to the heart of the applicant’s claim, or any other 10
relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer 11
. . . to an IJ’s credibility determination unless, from the 12
totality of the circumstances, it is plain that no reasonable 13
fact-finder could make such an adverse credibility ruling.” 14
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per 15
curiam); accord Hong Fei Gao, 891 F.3d at 76. The agency’s 16
adverse credibility determination is supported by substantial 17
evidence. 18
First, Shi was inconsistent about how many people came 19
to take her to get a forced abortion, and she did not offer 20
a compelling explanation for this inconsistency, which goes 21

4

to the heart of her claim. S ee Majidi v. Gonzales, 430 F.3d 1
77, 80 (2d Cir. 2005) (“A petitioner must do more than offer 2
a plausible explanation for h[er] inconsistent statements to 3
secure relief; [s]he must demonstrate that a reasonable fact-4
finder would be compelled to credit h[er] testimony.” 5
(internal quotation marks omitted)). 6
Second, Shi failed to disclose in her asylum application 7
that she lived in France for about four years from 2005 to 8
2009 and had applied for asylum there. Shi’s explanation 9
that her lawyer did not ask her the question does not fully 10
resolve such an omission of a relatively long period of her 11
adult life and a previous attempt at seeking asylum. Id. 12
While the agency may err if it relies too heavily on minor 13
omissions, at least where the omitted information would have 14
supplemented, rather than contradicted, earlier statements, 15
the agency did not err here because the omission concerned an 16
alleged prior effort to seek refugee status elsewhere, which 17
is information explicitly requested on the asylum application 18
form. See Ming Zhang v. Holder, 585 F.3d 715, 726 (2d Cir. 19
2009) (holding that the agency may “draw an adverse inference 20
about petitioner’s credibility based, inter alia, on her 21

5

failure to mention” important details or events in prior 1
statements). Further, as the agency noted, the omission was 2
material because the prior asylum application could have 3
either confirmed or undermined Shi’s current asylum claim. 4
See Hong Fei Gao, 891 F.3d at 78, 82 (holding that “the 5
probative value of a witness’s prior silence on particular 6
facts depends on whether those facts are ones the witness 7
would reasonably have been expected to disclose” and that 8
“[o]missions need not go to the heart of a claim to be 9
considered in adverse credibility determinations, but they 10
must still be weighed in light of the totality of the 11
circumstances and in the context of the record as a whole”). 12
Third, having questioned Shi’s credibility, the agency 13
reasonably relied on her failure to rehabilitate her 14
testimony with reliable corroborating evidence. See Biao 15
Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per 16
curiam) (“An applicant’s failure to corroborate his or her 17
testimony may bear on credibility, because the absence of 18
corroboration in general makes an applicant unable to 19
rehabilitate testimony that has already been called into 20
question.”). The agency did not err in declining to afford 21

6

significant weight to the letters from Shi’s family members 1
(her sister, mother, husband, and sister-in- law) as well as 2
a single notice from the family-planning authorities about a 3
2014 IUD inspection because none of the authors was available 4
for cross-examination, and her family members were interested 5
parties. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 6
2013) (deferring to agency’s decision to afford little weight 7
to spouse’s letter because it was unsworn and from an 8
interested witness); see also In re H-L-H- & Z- Y-Z-, 25 I. & 9
N. Dec. 209, 215 (BIA 2010) (letters from an alien’s friends 10
and family were insufficient to provide substantial support 11
for the alien’s claims because they were from interested 12
witnesses not subject to cross-examination), overruled on 13
other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–14
38 (2d Cir. 2012). In addition, Shi testified inconsistently 15
about why she did not submit more than one IUD inspection 16
notice: she testified that notices were sent every three 17
months and when asked to explain the absence of additional 18
notices, she first stated she had some at home in China, and 19
then later said she had lost the notices. 20
Accordingly, given the inconsistency regarding the 21

7

primary harm, Shi’s omission of her residence and request for 1
asylum in France, and the lack of reliable corroboration, the 2
adverse credibility determination is supported by substantial 3
evidence. See Xiu Xia Lin, 534 F.3d at 165–66. The adverse 4
credibility determination was dispositive of asylum, 5
withholding of removal, and CAT relief because all three forms 6
of relief were based on the same discredited factual 7
predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d 8
Cir. 2006). 9
For the foregoing reasons, the petition for review is 10
DENIED. All pending motions and applications are DENIED and 11
stays VACATED. 12
FOR THE COURT: 13
Catherine O’Hagan Wolfe, 14
Clerk of Court 15
16