Fu v. Garland

F
     18-3691
     Fu v. Garland
                                                                           BIA
                                                                      Conroy, IJ
                                                                   A201 296 873
                          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 13th day of May, two thousand twenty-one.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            RAYMOND J. LOHIER, JR.,
 9            STEVEN J. MENASHI,
10                 Circuit Judges.
11   _____________________________________
12
13   LIU CHUI FU, AKA PEI FU LIU,
14            Petitioner,
15
16                   v.                                  18-3691
17                                                       NAC
18   MERRICK B. GARLAND, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                 Zhou Wang, Esq., New York, NY.
24
25   FOR RESPONDENT:                 Joseph H. Hunt, Assistant
26                                   Attorney General; Claire L.
27                                   Workman, Senior Litigation
28                                   Counsel; Don G. Scroggin, Trial
 1                              Attorney, 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 Liu Chui Fu, a native and citizen of the

10   People’s Republic of China, seeks review of a November 20,

11   2018, decision of the BIA affirming an October 10, 2017,

12   decision of an Immigration Judge (“IJ”).     In re Liu Chui Fu,

13   No. A 201 296 873 (B.I.A. Nov. 20, 2018), aff’g No. A 201 296

14   873 (Immig. Ct. N.Y. City Oct. 10, 2017).        We assume the

15   parties’ familiarity with the underlying facts and procedural

16   history.

17         We have reviewed both the IJ’s and BIA’s decisions.    See

18   Yun-Zui Guan v. Gonzales, 

432 F.3d 391

, 394 (2d Cir. 2005).

19   The standards of review are well established.     See 8 U.S.C.

20   § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 

891 F.3d 67

, 76

21   (2d   Cir.   2018).     “Considering   the   totality   of   the

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

23   base a credibility determination on . . . the inherent

                                    2
 1   plausibility of the applicant’s . . . account, the consistency

 2   between     the   applicant’s    or       witness’s   written   and    oral

 3   statements . . . , [and] the consistency of such statements

 4   with other evidence of record . . . without regard to whether

 5   an inconsistency, inaccuracy, or falsehood goes to the heart

 6   of the applicant’s claim, or any other relevant factor.”

 7   8 U.S.C. § 1158(b)(1)(B)(iii).             “We defer . . . to an IJ’s

 8   credibility determination unless, from the totality of the

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

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

11   v. Mukasey, 

534 F.3d 162

, 167 (2d Cir. 2008); accord Hong Fei

12   

Gao, 891 F.3d at 76

.            Substantial evidence supports the

13   agency’s determination that Fu did not state a credible claim

14   of   past    persecution    on     account      of    his   practice    of

15   Christianity.

16        Fu has waived any challenge to the agency’s reliance on

17   his inconsistent statements about whether he was tortured or

18   only threatened during his five visits to police after release

19   from detention by failing to address that inconsistency in

20   his brief.    See Yueqing Zhang v. Gonzales,           

426 F.3d 540

, 541

21   n.1 (2d Cir. 2009) (holding that claims not discussed in a


                                           3
 1   brief are waived).   This inconsistency alone is substantial

 2   evidence for the adverse credibility determination because

 3   the alleged beatings were examples of the police abuse that

 4   formed the basis of Fu’s claim of past persecution.        See Xian

 5   Tuan Ye v. Dep’t of Homeland Sec., 

446 F.3d 289

, 295 (2d Cir.

 6   2006) (holding that a “material inconsistency in an aspect of

 7   [applicant’s] story that served as an example of the very

 8   persecution from which he sought asylum . . . afforded

9    substantial   evidence   to   support   the   adverse   credibility

10   finding” (internal quotation marks omitted)); see also Likai

11   Gao v. Barr, 

968 F.3d 137

, 145 n.8 (2d Cir. 2020) (“[E]ven a

12   single inconsistency might preclude an alien from showing

13   that an IJ was compelled to find him credible. Multiple

14   inconsistencies would so preclude even more forcefully.”).

15   Thus, even absent the IJ’s implausibility finding regarding

16   Fu’s testimony about when his mother advised him to leave

17   China, substantial evidence supports the adverse credibility

18   determination.   See Gurung v. Barr, 

929 F.3d 56

, 62 (2d Cir.

19   2019) (noting that remand to the agency would be futile when

20   “the reviewing panel is confident that the agency would reach

21   the same result upon reconsideration cleansed of errors”).


                                      4
 1          The    IJ   also     reasonably         found    that   Fu’s     documentary

 2   evidence failed to rehabilitate his credibility.                                 See 8

 3   U.S.C. § 1158(b)(1)(B)(ii); Biao Yang v. Gonzales, 

496 F.3d

4

  268,    273     (2d      Cir.     2007)    (“An        applicant’s      failure     to

 5   corroborate his or her testimony may bear on credibility,

 6   because the absence of corroboration in general makes an

 7   applicant unable to rehabilitate testimony that has already

 8   been called into question.”).                    Contrary to Fu’s argument

 9   here, the IJ did not err in declining to credit a letter from

10   Fu’s friend in China.             See Y.C. v. Holder, 

741 F.3d 324

, 332,

11   334    (2d     Cir.      2013)    (deferring      to     agency    on     weight     of

12   documentary evidence and upholding BIA’s decision not to

13   credit letter from applicant’s spouse in China); In re H-L-

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

15   letters from applicant’s friends and family                       insufficient to

16   provide substantial support for alien’s claims because they

17   were    from       interested       witnesses      not     subject        to    cross-

18   examination), overruled on other grounds by Hui Lin Huang v.

19   Holder, 

677 F.3d 130

, 133–38 (2d Cir. 2012).

20          Given       the     inconsistency          and      lack      of        reliable

21   corroboration,           the     adverse   credibility         determination        is


                                                5
 1   supported by substantial evidence.        See Xiu Xia Lin, 

534 F.3d

2

  at   167.     That   determination   is   dispositive   of   asylum,

 3   withholding of removal, and CAT relief because all three forms

 4   of relief are based on the same factual predicate.           See Paul

 5   v. Gonzales, 

444 F.3d 148

, 156-57 (2d Cir. 2006).

 6        For the foregoing reasons, the petition for review is

 7   DENIED.     All pending motions and applications are DENIED and

8    stays VACATED.

 9                                  FOR THE COURT:
10                                  Catherine O’Hagan Wolfe,
11                                  Clerk of Court




                                      6

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