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WEN v. GARLAND (2021)

United States Court of Appeals, Second Circuit.2021-04-07No. 19-3505

Summary

Holding. The petition for review is denied because substantial evidence supports the agency's adverse credibility determination regarding Wen's claims of persecution.

Yong Ming Wen, a Chinese national, sought asylum, withholding of removal, and relief under the Convention Against Torture based on claims that Chinese police detained and beat him for practicing Christianity in an underground church. The immigration judge and Board of Immigration Appeals both rejected his application, finding him not credible. On review, the court examined the credibility determination under the applicable deferential standard.

The court found substantial evidence supporting the adverse credibility finding. Wen had made false statements about his church's name at an initial interview, later admitting he fabricated it. He also initially denied leaving China before his U.S. trip but later acknowledged traveling to Moscow, eventually admitting that trip was an attempt to escape China. Additionally, he failed to mention a significant 2011 police raid on his church during his credible fear interview, later offering an explanation that he was tired. The court determined these inconsistencies and omissions were material enough to undermine his overall credibility.

Because credibility was central to all three forms of relief sought—asylum, withholding of removal, and CAT protection—the adverse credibility determination was dispositive. The court also found no abuse of discretion in the agency's decision to give little weight to Wen's documentary evidence, which could not rehabilitate his credibility once questioned.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether false statements about church identity constituted grounds for adverse credibility finding
  • Whether material omissions during credible fear interview supported credibility determination
  • Whether documentary evidence could rehabilitate credibility already undermined by inconsistent statements
  • Whether single adverse credibility determination was dispositive of asylum, withholding, and CAT claims

Procedural posture

Petitioner seeks review of a Board of Immigration Appeals decision affirming an immigration judge's denial of asylum, withholding of removal, and Convention Against Torture relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

SUMMARY ORDER

Petitioner Yong Ming Wen, a native and citizen of the Peoples Republic of China, seeks review of an October 8, 2019, decision of the BIA affirming a March 23, 2018, decision of an Immigration Judge (“IJ”) denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yong Ming Wen, No. A200 237 531 (B.I.A. Oct. 8, 2019), affg No. A200 237 531 (Immig. Ct. N.Y. City Mar. 23, 2018). We assume the parties’ familiarity with the underlying facts and procedural history.

Under the circumstances of this case, we have reviewed both the IJs and BIAs decisions “for the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). The applicable 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 consistency between the applicants or witnesss written and oral statements ․, the internal consistency of each such statement ․, and any inaccuracies or falsehoods in such statements, 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 Wen was not credible as to his claim that police detained and beat him for practicing Christianity in an underground church in China.

The agency reasonably relied on Wens false statements about the name of his church in China and the purpose of a trip to Moscow. At a credible fear interview, Wen stated that he belonged to an “underground Roman Catholic Church” named Saint Marys Church. However, in his asylum application and testimony, he stated that he actually belonged to Haiyu Village Christian Church and admitted that he “made up” the name of his church at the credible fear interview. Further, he initially testified that his trip to the United States was the first time he left China but later admitted that he previously went to Moscow to visit relatives and go sightseeing. Upon further questioning, he admitted that the earlier trip was actually an attempt to leave China. The IJ was not required to accept his explanations that he was nervous and afraid of being sent back to China. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer a plausible explanation for his inconsistent statements to secure relief; he must demonstrate that a reasonable fact-finder would be compelled to credit his testimony.” (internal quotation marks omitted)).

Moreover, the agency reasonably relied on Wens omission during the credible fear interview of a March 2011 police raid on his church. In his asylum application and testimony, he stated that he escaped that raid without being arrested, but gave inconsistent dates for it in his testimony. The IJ was not required to accept his explanation that he “was very tired physically” at the interview. See Majidi, 430 F.3d at 80; see also Hong Fei Gao, 891 F.3d at 78-79 (weight given to an omission depends, in part, on whether “facts are one that a credible petitioner would reasonably have been expected to disclose under the relevant circumstances”).

The agency did not abuse its discretion in declining to give weight to Wens documentary evidence, so that evidence did not rehabilitate his credibility. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (holding that “[w]e generally defer to the agencys evaluation of the weight to be afforded to an applicants documentary evidence” and deferring to agencys decision to afford little weight to letter from applicants spouse); 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.”).

Given these false statements and omission, substantial evidence supports the adverse credibility determination. See Xiu Xia Lin, 534 F.3d at 167 (agency may rely on cumulative effect of inconsistencies and omissions). The agencys adverse credibility determination is dispositive of asylum, withholding of removal, and CAT relief because all three claims 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.