Li v. B.I.A., (2nd Cir. 2007)

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06-3970

Li v. B.I.A.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

A F T E R JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 0.23 AND

F E D E R A L RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

C I T E S A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

M U S T EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)."

U N L E S S THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE

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P A R T Y CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

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A V A I L A B I L I T Y OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT

D A T A B A S E AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

A t a stated term of the United States Court of Appeals

f o r the Second Circuit, held at the Daniel Patrick Moynihan

U n i t e d States Courthouse, 500 Pearl Street, in the City of

N e w York, on the 19th day of April, two thousand seven.

PRESENT:

H O N . WILFRED FEINBERG,

H O N . CHESTER J. STRAUB,

H O N . BARRINGTON D. PARKER,

C i r c u i t Judges.

M E I SHU LI,

Petitioner,

v. 06-3970-ag

NAC

B O A R D OF IMMIGRATION APPEALS,

Respondent.

F O R PETITIONER: G a r y J. Yerman, New York, New York.

06-3970 Li v. BIA F O R RESPONDENT: S t e p h e n J. Murphy, United States A t t o r n e y for the Eastern District of M i c h i g a n , Diane L. Marion, Assistant U n i t e d States Attorney, Detroit, Michigan.

U P O N DUE CONSIDERATION of this petition for review of a d e c i s i o n of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED, that the petition for r e v i e w is DENIED.

M e i Shu Li, a native and citizen of the People's Republic o f China, seeks review of an August 3, 2006, order of the BIA a f f i r m i n g the March 8, 2005, decision of Immigration Judge ( " I J " ) Gabriel C. Videla denying Li's applications for asylum, withholding of removal, and relief under the Convention A g a i n s t Torture ("CAT"). In re Mei Shu Li, No. A97 602 610 ( B I A Aug. 3, 2006), aff'g No. A97 602 610 (Immig. Ct. N.Y.

C i t y Mar. 8, 2005). We assume the parties' familiarity with t h e underlying facts and procedural history of the case.

W h e n the BIA affirms the IJ's decision in all respects b u t one, we review the IJ's decision as modified by the BIA d e c i s i o n , i.e., "minus the single argument for denying relief t h a t was rejected by the BIA." Xue Hong Yang v. U.S. Dep't of J u s t i c e , 426 F.3d 520, 522 (2d Cir. 2005). We review the agency's factual findings, including adverse credibility 06-3970 Li v. BIA determinations, under the substantial evidence standard, t r e a t i n g them as "conclusive unless any reasonable adjudicator w o u l d be compelled to conclude to the contrary." 8U.S.C. § 1 2 5 2 ( b ) ( 4 ) ( B ) ; see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 7 3 & n.7 (2d Cir. 2004). However, we will vacate and remand f o r new findings if the agency's reasoning or its fact-finding p r o c e s s was sufficiently flawed. See Cao He Lin v. U.S. Dep't o f Justice, 428 F.3d 391, 406 (2d Cir. 2005); Tian-Yong Chen v . INS, 359 F.3d 121, 129 (2d Cir. 2004); see also Xiao Ji C h e n v. U.S. Dep't of Justice, 471 F.3d 315, 337-39 (2d Cir. 2 0 0 6 ) (agreeing with this principle, but avoiding remand, in s p i t e of deficiencies in an adverse credibility determination, b e c a u s e it could be confidently predicted that the IJ would a d h e r e to the decision were the case remanded).

As an initial matter, Li has abandoned her claim of i n e f f e c t i v e assistance of counsel by failing to raise it in h e r petition. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 5 4 6 n.7 (2d Cir. 2005).

M o r e o v e r , we conclude that the IJ's finding that Li was n o t credible is supported by substantial evidence. The IJ p r o p e r l y relied on Li's admission that she knowingly filed a f a l s e asylum application accompanied by fraudulent documents.

06-3970 Li v. BIA T h e IJ impugned Li for continuing to assert those fabricated c l a i m s at her asylum interview, and for failing to withdraw the fraudulent documents from her application. The IJ c o n c l u d e d that Li only admitted to the fabrications when she was forced to do so, i.e., when counsel received a U.S.

Immigration and Customs Enforcement notice regarding her a s y l u m application. The IJ found that Li then went to another a t t o r n e y and blamed prior counsel for lying to the Court about t h e accuracy of the application. The IJ reasoned that Li was an educated person, having completed several years of s c h o o l i n g in China, and thus understood the gravity of her actions. These findings were consistent with Li's testimony.

W h i l e Li and her new attorney had an opportunity to refute t h e s e findings in court, they did not do so.

T h e IJ properly relied on Li's admitted fabrications to s u p p o r t his adverse credibility determination because they go t o the heart of her asylum claim. See Secaida-Rosales, 331 F . 3 d 297, 308-09 (2d Cir. 2003). Indeed, Li's admission c a l l e d her entire claim into question, leading the IJ to s t a t e , "I don't even know who this respondent is before this C o u r t because I have no faith in any of the documents that she submitted." We have recently found that an IJ may rely on 06-3970 Li v. BIA f a l s e testimony or evidence to discredit other uncorroborated o r unauthenticated evidence presented by an asylum applicant.

S e e Siewe v. Gonzales, -- F.3d --, 2007 WL 744732 *9 (2d Cir. M a r . 13, 2007); see also In re O-D-, 21 I & N Dec. 1079, 1083 ( B I A 1998) (BIA found that the presentation of at least one c o u n t e r f e i t document submitted to prove a central element of an asylum claim is indicative of an applicant's lack of credibility). Here, Li's assertions that she did not comply w i t h the Chinese government's vaccination requirements and t h a t the government sought her arrest for harboring North K o r e a n refugees were supported only by her testimony and by u n a u t h e n t i c a t e d documents, which the IJ properly chose not to c r e d i t in the face of the fabrications in her asylum claim.

I n such circumstances, we are "in no position to conclude that t h e discrediting of the remaining evidence is unsupported by s u b s t a n t i a l evidence." Siewe, 2007 WL 744732 at *9.

W h i l e Li explained that she had a change of heart and t h a t she wished to correct her misstatements, the IJ refused t o credit her explanation, and found that she admitted to her f a b r i c a t i o n only when she realized that "the whole thing's unraveling." Because a reasonable factfinder would not be c o m p e l l e d to credit Li's explanation and find contrary to the 06-3970 Li v. BIA I J ' s conclusion, the IJ's adverse credibility finding was supported by substantial evidence. See 8 U.S.C. § 1 2 5 2 ( b ) ( 4 ) ( B ) ; see Zhou Yun Zhang, 386 F.3d at 73 & n.7.

W h i l e the IJ made additional findings regarding other i n c o n s i s t e n c i e s and implausibilities in Li's testimony, it is u n n e c e s s a r y to review them here. The IJ's reliance on Li's a d m i s s i o n that she submitted fabricated documents, that she f a b r i c a t e d portions of her asylum application, and that she t e s t i f i e d consistently with those fabrications at her asylum interview, are "specific, cogent reasons" that "bear a legitimate nexus" to the adverse credibility finding.

S e c a i d a - R o s a l e s , 331 F.3d at 307.

B e c a u s e the only evidence of a threat to Li's life or f r e e d o m depended upon her credibility, the adverse credibility d e t e r m i n a t i o n in this case necessarily precludes success on h e r claim for withholding of removal and relief under CAT.

S e e Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); cf.

R a m s a m e a c h i r e v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir. 2004) ( h o l d i n g that the agency may not deny a CAT claim solely on t h e basis of an adverse credibility finding made in the asylum c o n t e x t , where the CAT claim did not turn upon credibility).

F o r the foregoing reasons, the petition for review is 06-3970 Li v. BIA DENIED. Having completed our review, petitioner's pending m o t i o n for a stay of removal in this petition is DISMISSED as moot.

F O R THE COURT: T h o m a s Asreen, Acting Clerk By:

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