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FU v. GARLAND (2021)

United States Court of Appeals, Second Circuit.2021-05-13No. 18-3691 NAC

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Opinion

SUMMARY ORDER

Petitioner Liu Chui Fu, a native and citizen of the Peoples Republic of China, seeks review of a November 20, 2018, decision of the BIA affirming an October 10, 2017, decision of an Immigration Judge (“IJ”). In re Liu Chui Fu, No. A XXX XX6 873 (B.I.A. Nov. 20, 2018), affg No. A XXX XX6 873 (Immig. Ct. N.Y. City Oct. 10, 2017). We assume the parties’ familiarity with the underlying facts and procedural history.

We have reviewed both the IJs and BIAs decisions. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on ․ the inherent plausibility of the applicants ․ account, the consistency between the applicants or witnesss written and oral statements ․, [and] the consistency of such statements with other evidence of record ․ without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicants claim, or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer ․ to an IJs credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports the agencys determination that Fu did not state a credible claim of past persecution on account of his practice of Christianity.

Fu has waived any challenge to the agencys reliance on his inconsistent statements about whether he was tortured or only threatened during his five visits to police after release from detention by failing to address that inconsistency in his brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005) (holding that claims not discussed in a brief are waived). This inconsistency alone is substantial evidence for the adverse credibility determination because the alleged beatings were examples of the police abuse that formed the basis of Fus claim of past persecution. See Xian Tuan Ye v. Dept of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding that a “material inconsistency in an aspect of [applicants] story that served as an example of the very persecution from which he sought asylum ․ afforded substantial evidence to support the adverse credibility finding” (internal quotation marks omitted)); see also Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude an alien from showing that an IJ was compelled to find him credible. Multiple inconsistencies would so preclude even more forcefully.”). Thus, even absent the IJs implausibility finding regarding Fus testimony about when his mother advised him to leave China, substantial evidence supports the adverse credibility determination. See Gurung v. Barr, 929 F.3d 56, 62 (2d Cir. 2019) (noting that remand to the agency would be futile when “the reviewing panel is confident that the agency would reach the same result upon reconsideration cleansed of errors”).

The IJ also reasonably found that Fus documentary evidence failed to rehabilitate his credibility. See 8 U.S.C. § 1158(b)(1)(B)(ii); Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicants failure to corroborate his or her testimony may bear on credibility, because the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question.”). Contrary to Fus argument here, the IJ did not err in declining to credit a letter from Fus friend in China. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (deferring to agency on weight of documentary evidence and upholding BIAs decision not to credit letter from applicants spouse in China); In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding letters from applicants friends and family insufficient to provide substantial support for aliens claims because they were from interested witnesses not subject to cross-examination), overruled on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012).

Given the inconsistency and lack of reliable corroboration, the adverse credibility determination is supported by substantial evidence. See Xiu Xia Lin, 534 F.3d at 167. That determination is dispositive of asylum, withholding of removal, and CAT relief because all three forms of relief are based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.