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WU v. GARLAND (2021)

United States Court of Appeals, Second Circuit.2021-03-16No. 18-2585

Summary

Holding. The petition for review was denied, affirming the Board of Immigration Appeals' decision that substantial evidence supported an adverse credibility determination, which was dispositive of Wu's asylum, withholding of removal, and Convention Against Torture relief applications.

Saiguan Wu, a Chinese national, petitioned for review of a decision denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture. The Immigration Judge and Board of Immigration Appeals found Wu not credible based on material inconsistencies and omissions in his testimony and written statements. Wu's asylum application mentioned only that an officer slapped him during detention, but he later testified to being beaten on his face, stomach, and back—omissions he attributed to forgetting to include the details. Similarly, Wu's testimony about his Christian practice contradicted church certifications regarding when he was baptized, claiming he attended twelve weeks of classes when the church records showed baptism occurred just three weeks after he began attending services.

The court found substantial evidence supported the credibility finding. Wu's omissions about the severity of his detention mistreatment were particularly significant because his entire asylum claim rested on that detention. His post-hearing explanations for the baptism inconsistency—that he passed an exam instead of attending all classes—conflicted with his prior sworn testimony and were properly rejected. Because Wu lacked credibility regarding both the core of his persecution claim and his religious practice, the adverse credibility determination was dispositive of all three forms of relief sought.

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

Key issues

  • Whether omissions of material facts in asylum applications can support adverse credibility findings
  • Whether inconsistencies between written statements and testimony regarding severity of past harm undermine asylum claims
  • Standard of review for Immigration Judge credibility determinations
  • Whether post-hearing explanations must be accepted when they conflict with prior testimony

Procedural posture

Wu sought judicial review of the Board of Immigration Appeals' affirmance of an Immigration Judge's denial of his asylum, withholding of removal, and Convention Against Torture relief applications.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

SUMMARY ORDER

Petitioner Saiguan Wu, a native and citizen of the Peoples Republic of China, seeks review of an August 1, 2018 decision of the BIA affirming an August 29, 2017 decision of an Immigration Judge (“IJ”) denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Saiguan Wu, No. A200 929 089 (B.I.A. Aug. 1, 2018), affg No. A200 929 089 (Immig. Ct. N.Y.C. Aug. 29, 2017). We assume the parties’ familiarity with the underlying facts and procedural history.

Under the circumstances of this case, we have reviewed the IJs decision as modified by the BIA, i.e., without the inconsistencies that the IJ identified with respect to Wus travel from China and which days he attended church services in the United States that the BIA did not rely on. See Xue Hong Yang v. U.S. Dept of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 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 Wu was not credible given his omission of facts related to the severity of his alleged past harm and his inconsistent statements about his practice of Christianity in the United States.

The agency reasonably relied on Wus omission from his asylum application of the most severe details of his treatment in detention. See Xiu Xia Lin, 534 F.3d at 166 n.3 (stating that “[a]n inconsistency and an omission are ․ functionally equivalent” for credibility purposes). In that application, Wu stated that an officer slapped him during an interrogation session during his detention in China. But he later testified that he was beaten on his face, stomach, and back. When asked why he did not detail the extent of his beating and injuries in his application, Wu said that he “forgot to write it down.” Admin. Rec. at 154–55. In a post-hearing affidavit, he stated that he forgot to tell the attorney who prepared his asylum application that he was beaten on the back and stomach.

Although “asylum applicants are not required to list every incident of persecution” in an application, Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006), Wus testimony did not merely provide additional detail, he testified to a substantially more serious attack, see Majidi v. Gonzales, 430 F.3d 77, 79-80 (2d Cir. 2005) (relying on applicants failure to mention that he was present and beaten when his home was ransacked). Nor was the agency required to accept his explanations that he forgot to include the additional information or forgot to provide the information to the attorney. See id. at 80 (“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)); see also Hong Fei Gao, 891 F.3d at 78–79 (“[I]n assessing the probative value of the omission of certain facts, an IJ should consider whether those facts are ones that a credible petitioner would reasonably have been expected to disclose under the relevant circumstances.”). While he now argues that it was “inevitable” that some details were left out because the application “was prepared by someone else” and was not written in his native language, these are not the explanations he offered to the agency and are inconsistent with his prior claim that he forgot to provide the information. Petrs Br. at 6. Because Wus detention was the basis for his claim, these omissions about the extent of his physical harm constitute substantial evidence for the adverse credibility determination. See Xian Tuan Ye v. Dept of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding that even a single inconsistency is sufficient to support an adverse credibility determination if it is material and relates to “an example of the very persecution from which” the applicant seeks asylum).

The agency also reasonably relied on Wus inconsistent testimony about his baptism to conclude that he was not credible as to his practice of Christianity in the United States. See Biao Yang v. Gonzales, 496 F.3d 268, 272–73 (2d Cir. 2007) (upholding adverse credibility determination based on inconsistencies regarding when petitioner was baptized because his “claims of persecution are based on his practice of religion”). Wu submitted certifications from his church that he was baptized three weeks after he began attending services, but he testified that he took classes for twelve weeks before his baptism. After Wus testimony concluded, the Government and the IJ stated that they had concerns about his credibility because it was not possible to attend classes for twelve weeks in a three-week period. When Wu tried to interject, the IJ advised him to consult with his attorney. Although no explanation was provided at the hearing, Wu later submitted both an affidavit stating that he was excused from the classes because he passed an exam, and a letter from his church to confirm that he was baptized after passing an exam. The IJ was not required to accept Wus post-hearing explanation as it conflicted with his unequivocal testimony that he was required to take twelve classes. See Majidi, 430 F.3d at 80. While Wu argues that the IJ did not give him an opportunity to explain the inconsistency, an IJ is not required to solicit explanations for inconsistencies that are “obvious and substantial.” Ming Shi Xue v. BIA, 439 F.3d 111, 120 (2d Cir. 2006).

Because Wu was not credible as to either his past harm or his practice of Christianity, the adverse credibility determination is dispositive of asylum, withholding of removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006). Accordingly, we do not separately address Wus argument that there is a pattern or practice of persecution of Christians in China.

For the foregoing reasons, the petition for review is DENIED.