Tang v. Sessions

16-3758 Tang v. Sessions BIA Hom, IJ A200 168 577 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 17th day of September, two thousand 5 eighteen. — 6 — 7 PRESENT: 8 JOHN M. WALKER, JR., 9 REENA RAGGI, 10 DENNY CHIN, 11 Circuit Judges. 12 _____________________________________ 13 YING TANG, 14 Petitioner, — 15 — 16 v. 16-3758 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ — 22 — 23 FOR PETITIONER: Charles Christophe, New York, NY. — 24 — 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Carl McIntyre, 27 Assistant Director; Kevin J. 28 Conway, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Ying Tang, a native and citizen of the 6 People’s Republic of China, seeks review of a BIA decision 7 affirming an Immigration Judge’s (“IJ”) denial of Tang’s 8 application for asylum, withholding of removal, and relief 9 under the Convention Against Torture (“CAT”). In re Ying 10 Tang, No. A200 168 577 (B.I.A. Oct. 7, 2016), aff’g No. A200 11 168 577 (Immig. Ct. N.Y. City May 20, 2015). Under the 12 circumstances of this case, we review both the IJ’s and the 13 BIA’s opinions “for the sake of completeness,” Wangchuck v. 14 Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006), and 15 address only the adverse credibility determination, applying 16 well-established standards of review, see 8 U.S.C. 17 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162 , 16518 66 (2d Cir. 2008) (reviewing adverse credibility 19 determination for substantial evidence). In doing so, we 20 assume the parties’ familiarity with the underlying facts and 21 procedural history in this case. — 2 — 1 For applications such as Tang’s, governed by the REAL ID 2 Act of 2005, the agency may, “considering the totality of the 3 circumstances,” base a credibility finding on an applicant’s 4 “demeanor, candor, or responsiveness,” as well as 5 inconsistencies in her statements and other record evidence 6 “without regard to whether” those inconsistencies go “to the 7 heart of the applicant’s claim.” 8 U.S.C. 8 § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 163-64 . 9 “We defer . . . to an IJ’s credibility determination unless, 10 from the totality of the circumstances, it is plain that no 11 reasonable fact-finder could make such an adverse credibility 12 ruling.” Xiu Xia Lin, 534 F.3d at 167 . By these standards, 13 substantial evidence supports the agency’s determination that 14 Tang was not credible as to her claim that Chinese family 15 planning officials ordered her to terminate a pregnancy and 16 attempted forcibly to sterilize her for violating China’s 17 family planning policy. 18 First, the agency reasonably relied in part on Tang’s 19 demeanor, noting that she became nervous, evasive, and 20 unresponsive on cross-examination. See 8 U.S.C. 21 § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d 22 77 , 81 n.1 (2d Cir. 2005) (recognizing that particular — 3 — 1 deference is given to the trier of fact’s assessment of 2 demeanor). That finding is supported by the record. 3 Second, the demeanor finding and the adverse credibility 4 determination are bolstered by record inconsistencies. See 5 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d 6 Cir. 2006). The agency reasonably found Tang’s interview 7 statement that her husband had informed her that she had been 8 ordered to report for an abortion inconsistent with her 9 hearing testimony that family planning officials had come to 10 her home to inform her directly of that reporting obligation. 11 See Xiu Xia Lin, 534 F.3d at 165-67 ; see also Diallo v. 12 Gonzales, 445 F.3d 624, 632 (2d Cir. 2006). The agency also 13 reasonably noted evidentiary inconsistencies regarding the 14 reasons family planning officials purportedly gave for 15 targeting her for an abortion. See 8 U.S.C. 16 § 1158(b)(1)(B)(iii). Tang did not provide compelling 17 explanations for these inconsistencies. See Majidi, 430 F.3d 18 at 80 (“A petitioner must do more than offer a plausible 19 explanation for [her] inconsistent statements to secure 20 relief; [s]he must demonstrate that a reasonable fact-finder 21 would be compelled to credit [her] testimony.” (internal 22 quotation marks omitted)). — 4 — 1 Finally, having questioned Tang’s credibility, the 2 agency reasonably relied on her failure to rehabilitate her 3 credibility with corroborating evidence. See Biao Yang v. 4 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency did 5 not err in declining to credit Tang’s husband’s letter because 6 it was unsworn and her husband was an interested party who 7 was not available for cross-examination. See Y.C. v. Holder, — 8 — 741 F.3d 324, 334 (2d Cir. 2013). 9 Given these demeanor and inconsistency findings, as well 10 as the lack of corroboration, the totality of the 11 circumstances supports the agency’s adverse credibility 12 determination such that no reasonable factfinder would be 13 “compelled to conclude to the contrary.” Majidi, 430 F.3d 14 at 79 . That determination is dispositive of Tang’s claims 15 for asylum, withholding of removal, and CAT relief because 16 all three claims are based on the same factual predicate. 17 See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 18 For the foregoing reasons, the petition for review is 19 DENIED. As we have completed our review, any stay of removal 20 that the Court previously granted in this petition is VACATED, — 21 — — 5 — 1 and any pending motion for a stay of removal in this petition 2 is DISMISSED as moot. 3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk of Court — 6 —