Sun v. Barr BIA Vomacka, IJ A205 631 399

18-424
Sun v. Barr
BIA
Vomacka, IJ
A205 631 399
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 13
th
day of January, two thousand twenty. 4
5
PRESENT: 6
JON O. NEWMAN, 7
JOHN M. WALKER, JR., 8
Circuit Judges.
1
9
_____________________________________ 10
11
XIU LAN SUN, 12
Petitioner, 13
14
v. 18-424 15
NAC 16
WILLIAM P. BARR, UNITED STATES 17
ATTORNEY GENERAL, 18
Respondent. 19
_____________________________________ 20
21
FOR PETITIONER: Mike P. Gao, Flushing, NY. 22
23
FOR RESPONDENT: Chad A. Readler Acting Assistant 24
Attorney General; Russell J.E. 25
Verby, Senior Litigation Counsel; 26
John D. Williams, Trial Attorney, 27

1
The panel originally included Circuit Judge Christopher F. Droney, who fully
retired from the court on December 31, 2019. This case is decided by the
remaining two judges, consistent with section E(b) of the Internal Operating
Procedures of the Second Circuit.

2

Office of Immigration Litigation, 1
United States Department of 2
Justice, Washington, DC. 3
UPON DUE CONSIDERATION of this petition for review of a 4
Board of Immigration Appeals (“BIA”) decision, it is hereby 5
ORDERED, ADJUDGED, AND DECREED that the petition for review 6
is DENIED. 7
Petitioner Xiu Lan Sun, a native and citizen of the 8
People’s Republic of China, seeks review of a February 6, 9
2018, decision of the BIA affirming a May 17, 2017, decision 10
of an Immigration Judge (“IJ”) denying Sun’s application for 11
asylum, withholding of removal, and relief under the 12
Convention Against Torture (“CAT”). In re Xiu Lan Sun, No. 13
A
205 631 399 (B.I.A. Feb. 6, 2018), aff’g No. A 205 631 399 14
(Immig. Ct. N.Y. City May 17, 2017). We assume the parties’ 15
familiarity with the underlying facts and procedural history 16
in this case. 17
We have reviewed both the BIA’s and IJ’s decisions. See 18
Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). 19
The applicable standards of review are well established. See 20
8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 21
67, 76–77 (2d Cir. 2018). In making a credibility 22
determination, the agency must “[c]onsider[] the totality of 23
the circumstances” and may base a finding on the applicant’s 24

3

“demeanor, candor, or responsiveness . . . , the inherent 1
plausibility of the applicant’s . . . account,” 2
inconsistencies in the applicant’s statements or between her 3
statements and other evidence, “without regard to whether an 4
inconsistency, inaccuracy, or falsehood goes to the heart of 5
the applicant’s claim, or any other relevant factor.” 6
8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 7
credibility determination unless, from the totality of the 8
circumstances, it is plain that no reasonable fact-finder 9
could make such an adverse credibility ruling.” Xiu Xia Lin 10
v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei 11
Gao, 891 F.3d at 76. As discussed below, substantial 12
evidence supports the adverse credibility determination. 13
The IJ reasonably concluded that Sun’s written statements 14
and testimony offered varying accounts of her alleged 15
persecution—that she was required to have an intrauterine 16
device (“IUD”) in 1986, have pregnancy checks thereafter, and 17
was forced to have an abortion in 2004. See 8 U.S.C. 18
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163–64, 166–19
67. In her written statements, Sun represented that she was 20
required to have an IUD after she had her first child and 21
when family planning officials discovered she was pregnant 22
with a second child, they “demanded” that she have an abortion 23

4

and took her to an operating room where she underwent the 1
procedure. But Sun testified that family planning officers 2
restrained her while a nurse implanted her IUD, and a family 3
planning officer held her down during her abortion. The IJ 4
was not compelled to accept Sun’s explanation that an attorney 5
prepared the statement as it failed to account for the 6
omission of the allegations of physical force, particularly 7
as the IJ had explicitly requested a more detailed written 8
statement. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 9
2005)(“A petitioner must do more than offer a plausible 10
explanation for h[er] inconsistent statements to secure 11
relief; [s]he must demonstrate that a reasonable fact-finder 12
would be compelled to credit h[er] testimony.” (internal 13
quotation marks omitted)). 14
Similarly, Sun’s written statements failed to mention 15
her employment at a state-owned factory, much less any adverse 16
workplace repercussions stemming from her abortion. In 17
contrast, Sun testified that after her abortion, her salary 18
was reduced, and she was targeted for disciplinary 19
infractions. The IJ was not required to accept Sun’s 20
explanation that she did not know to include these facts and 21
was entitled to rely on these omissions as they were direct 22
consequences of her violation of the family planning policy 23

5

that a credible petitioner would be expected to disclose under 1
the circumstances. See id; Hong Fei Gao, 891 F.3d at 78–79. 2
The IJ also reasonably concluded that aspects of Sun’s 3
testimony were implausible and more consistent with a 4
voluntary abortion, given that she testified to lesser 5
restrictions—birth control pills that she voluntarily ceased 6
using without consequence rather than an IUD—after the 7
abortion. See 8 U.S.C. § 1158(b)(1)(B)(iii); see Siewe v. 8
Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007) (“[S]peculation 9
that inheres in inference is not ‘bald’ if the inference is 10
made available to the factfinder by record facts . . . in the 11
light of common sense and ordinary experience.”). Nor did 12
the IJ err in relying on Sun’s three voluntary returns to 13
China prior to seeking asylum in the United States, as 14
undermining Sun’s fear of future harm. See Kone v. Holder, 15
596 F.3d 141, 150–51 (2d Cir. 2010) (holding that while 16
“return trips alone are insufficient to establish lack of 17
credibility,” an IJ may consider them in connection with other 18
findings). 19
The IJ also reasonably relied on Sun’s lack of reliable 20
corroboration. “An applicant’s failure to corroborate his 21
or her testimony may bear on credibility, because the absence 22
of corroboration in general makes an applicant unable to 23

6

rehabilitate testimony that has already been called into 1
question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2
2007). As the IJ found, Sun had no employment or medical 3
records to substantiate her claim. See Chuilu Liu v. Holder, 4
575 F.3d 193, 198 (2d Cir. 2009) (“[T]he alien bears the 5
ultimate burden of introducing [corroborating] evidence.”). 6
The IJ did not err in declining to credit the letter from 7
Sun’s mother as it did not mention the IUD or workplace issues 8
or give any detail about the abortion, and it was from an 9
interested witness not subject to cross-examination. See 10
Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring 11
to agency’s decision to afford little weight to spouse’s 12
letter from China because it was unsworn and from an 13
interested witness); Matter of H-L-H- & Z-Y-Z-, 25 I. & N. 14
Dec. 209, 215 (B.I.A. 2010) (finding that letters from alien’s 15
friends and family were insufficient support for claims 16
because they were from interested witnesses not subject to 17
cross-examination), overruled on other grounds by Hui Lin 18
Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012). 19
Given the variance among Sun’s written statements and 20
testimony, the implausible aspects of her claim, her multiple 21
returns to China, and the lack of corroboration, the “totality 22
of the circumstances” supports the adverse credibility 23

7

determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 1
Lin, 534 F.3d at 167. That determination is dispositive of 2
asylum, withholding of removal, and CAT relief because all 3
three claims are based on the same factual predicate. See 4
Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006). 5
For the foregoing reasons, the petition for review is 6
DENIED. As we have completed our review, any stay of removal 7
that the Court previously granted in this petition is VACATED, 8
and any pending motion for a stay of removal in this petition 9
is DISMISSED as moot. Any pending request for oral argument 10
in this petition is DENIED in accordance with Federal Rule of 11
Appellate Procedure 34(a)(2), and Second Circuit Local Rule 12
34.1(b). 13
FOR THE COURT: 14
Catherine O’Hagan Wolfe, 15
Clerk of Court 16
17