Ying Li v. BCISYing Li v. BCIS
Lorance Hockert, New York, NY, for Petitioner.
Susan K. Houser, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice (Peter D. Keisler, Assistant Attorney General, and Lisa M. Arnold, Senior Litigation Counsel, on the brief), Washington, DC, for Respondent.
DENNIS JACOBS, Chief Judge:
Petitioner Ying Li, a native and citizen of the People’s Republic of China, seeks review of a summary affirmance by the Board of Immigration Appeals (“BIA”) of the oral decision of an immigration judge (“IJ”), which denied her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). In re Li, Ying, No. A 95 688 247 (B.I.A. Feb. 20, 2007), aff’g No. A 95 688 247 (Immig. Ct. New York City, Aug. 9,
We conclude that the IJ’s adverse credibility determination is supported by substantial evidence. The IJ relied on several “valid” and “cogent” reasons for rejecting Li’s testimony as implausible. See Ming Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir. 2006). While explanations are available for features of petitioner’s account that were found implausible, we review the entire record, not whether each unusual feature of the account can be explained or rationalized. See Borovikova v. U.S. Dep‘t of Justice, 435 F.3d 151, 161 (2d Cir. 2006). The IJ could conclude that Li’s account, taken all in all, is implausible; and so we cannot say that any reasonable adjudicator would be compelled to conclude that she testified credibly. Accordingly, the petition is denied.
I
Ying Li was placed in removal proceedings in January
Li’s account–-as set forth in her asylum application and at her merits hearing–-is as follows:
Her uncle’s friend, a practitioner, introduced her to Falun Gong. Although Li had only a “basic understanding” of Falun Gong, she was “very interested” in it because “it [is] a good practice” and is beneficial to physical and mental health. Li promoted Falun Gong “because [she] believed that [Falun] Gong was not an evil cult.” However, Li was too busy with her studies to learn or practice Falun Gong in China.
After the Chinese government declared Falun Gong an “evil cult,” her uncle’s friend went into hiding. Li thought that the Chinese government “should not suppress and persecute Falun Gong followers, who were kind and innocent.” Li, a student at the Fuzhou City Industrial School,
When her uncle’s friend visited her in August 2004, he encouraged Li to continue her support. This individual visited Li’s family home about twenty times over a four to six week period. In September 2004, while Li was away, the police came to her home to arrest her. They told her father that someone had reported that she “colluded with Falun Gong followers,” and they challenged him when he denied that she was member of Falun Gong. According to Li, “[g]overnment officials pursued me everywhere, [and] threatened my family to disclose my whereabouts.” Subsequently, Li’s family arranged for her to leave China. In the United States, Li practices Falun Gong two to three times per week. She fears returning to China because “the Chinese government would arrest
The IJ denied Li’s application for asylum, withholding and CAT protection, reasoning, as described in Part III.B below: “None of this testimony is plausible or credible to the Court and, therefore, the Court does not believe that the respondent has presented testimony to which I can give credence.” In February 2007, the BIA summarily affirmed.
II
In considering an application for asylum, withholding of removal, and CAT protection, the agency generally must make a credibility finding; failure to do so may be a ground for vacatur. See Diallo v. INS, 232 F.3d 279, 290 (2d Cir. 2000). Although Li asserts on appeal that the IJ failed to make an adverse credibility determination, she did not exhaust this issue before the BIA; to the contrary, her submission to the BIA challenged the adverse credibility determination that the IJ made. We decline to consider this argument on appeal, and deem it forfeited. See Lin Zhong v. U.S. Dep‘t of Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007).
In the alternative, Li challenges the IJ’s adverse credibility determination.
A
When the BIA summarily affirms an IJ decision, we review the IJ decision as the final agency determination. Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). We review the agency’s factual findings, including an adverse credibility determination, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”
“When an IJ has supported an ultimate finding that an applicant’s testimony was not credible by concluding that
B
- Li claimed to promote Falun Gong for over six years (beginning at age 14) without ever learning or practicing it herself.
- The police sought to arrest Li, a teenager who never studied or practiced Falun Gong in China; yet her uncle’s friend, a Falun Gong practitioner, openly visited her home twenty times and was never arrested.
- Li was able to depart China from the airport using her own passport.
- At her hearing, Li recited only “elementary information” about Falun Gong and presented photographs of herself practicing Falun Gong which were, as Li acknowledged, taken on a single occasion.
Li responds that [1] she can claim persecution on account of her support for Falun Gong without practicing it; [2] nothing indicates that Li’s neighbors or the authorities knew that she was discussing Falun Gong with her uncle’s friend; [3] she was probably able to leave China on her own passport because she was wanted by local, not national
Some features of Li’s account that were doubted by the IJ can be rationalized or subjected to useful further inquiry and analysis. But when an adverse credibility finding is based partly or entirely on implausibility, we review the entire record, not whether each unusual or implausible feature of the account can be explained or rationalized. See Borovikova, 435 F.3d at 161 (“When an IJ bases an adverse credibility finding on multiple grounds, we review the totality of the IJ’s decision, instead of dissecting the IJ’s opinion and reviewing each portion in isolation.”); cf. Liang Chen v. U.S. Atty. Gen., 454 F.3d 103, 106-07 (2d Cir. 2006) (explaining that an IJ “may rely upon the cumulative impact” of inconsistencies “and may conduct an overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence” (internal quotation marks and citations omitted)).
On the basis of the entire record, we cannot disturb the IJ’s finding that Li’s account is implausible. The picture that emerges is of a student who promoted Falun Gong
There are available explanations. A person could, out of affection for a friend or altruistic commitment to liberty, risk her safety or give up her country for something she does not thoroughly understand or practice. Cf. Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir. 2006) (“[P]eople can identify with a certain religion, notwithstanding their lack of detailed knowledge about that religion’s doctrinal tenets, and . . . those same people can be persecuted for their religious affiliation.”). And it is possible that the Chinese authorities identified a high school student, and laid a dragnet for her, while failing to locate her friend’s uncle, an adult who practices and
At the same time, these available possibilities do not defeat a finding that the account is implausible. Features of the account are somewhat surprising. Moreover, the contours of the narrative are drawn in a way that evades corroboration to an unusual extent. Her account is one that could be established solely by perjury, permitting an inference of fabrication.
In light of the overall implausibility of Li’s account, we cannot say that any reasonable adjudicator would be compelled to conclude that Li testified credibly. See
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For the foregoing reasons, we deny the petition for review. Having completed our review, the pending motion for a stay of removal in this petition is denied as moot.