Ou v. Garland

19-3928 Ou v. Garland BIA Christensen, IJ A205 899 030 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 11th day of February, two thousand twenty5 two. [6] 7 PRESENT: 8 GERARD E. LYNCH, 9 RAYMOND J. LOHIER, JR., 10 WILLIAM J. NARDINI, 11 Circuit Judges. 12 _____________________________________ [13] 14 XIA OU, 15 Petitioner, [16] 17 v. 19-3928 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ [23] 24 FOR PETITIONER: Adedayo O. Idowu, Esq., New York, 25 NY. [26] 27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 28 Assistant Attorney General; Justin 1 Markel, Senior Litigation Counsel; 2 Nancy Friedman, Senior Litigation 3 Counsel, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC. 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Petitioner Xia Ou, a native and citizen of the People’s 12 Republic of China, seeks review of a November 8, 2019 decision 13 of the BIA affirming a February 8, 2018 decision of an 14 Immigration Judge (“IJ”) denying asylum, withholding of 15 removal, and relief under the Convention Against Torture 16 (“CAT”). In re Xia Ou, No. A205 899 030 (B.I.A. Nov. 8, 17 2019), aff’g No. A205 899 030 (Immig. Ct. N.Y. City Feb. 8, 18 2018). We assume the parties’ familiarity with the 19 underlying facts and procedural history. 20 Under the circumstances presented here, we review both 21 the BIA’s and the IJ’s decisions. Wangchuck v. Dep’t of 22 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The 23 applicable standards of review are well established. See 8 24 U.S.C. § 1252 (b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 2 1 67, 76 (2d Cir. 2018) (reviewing adverse credibility 2 determination for substantial evidence). 3 “Considering the totality of the circumstances, and all 4 relevant factors, a trier of fact may base a credibility 5 determination on . . . the consistency between the 6 applicant’s . . . written and oral statements . . . , the 7 internal consistency of each such statement, [and] the 8 consistency of such statements with other evidence of record 9 . . . without regard to whether an inconsistency, inaccuracy, 10 or falsehood goes to the heart of the applicant’s claim, or 11 any other relevant factor.” 8 U.S.C. § 1158 (b)(1)(B)(iii). 12 “We defer . . . to an IJ’s credibility determination 13 unless . . . it is plain that no reasonable fact-finder could 14 make such an adverse credibility ruling.” Xiu Xia Lin v. 15 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei 16 Gao, 891 F.3d at 76. 17 Here, substantial evidence supports the IJ’s adverse 18 credibility determination. As an initial matter, the agency 19 reasonably relied on the record of Ou’s asylum interview 20 because it “contain[s] a meaningful, clear, and reliable 21 summary of the statements made . . . at the interview.” [3] 1 Diallo v. Gonzales, 445 F.3d 624, 632 (2d Cir. 2006) 2 (quotation marks omitted). It shows an interpreter was 3 present and that Ou had a lawyer who helped her prepare an 4 application. 5 Ou gave inconsistent accounts in her testimony, asylum 6 interview, and application regarding how many times she was 7 pregnant, whether she had a miscarriage, and when her son was 8 born. See Likai Gao v. Barr, 968 F.3d 137 , 145 n.8 (2d Cir. 9 2020) (“[E]ven a single inconsistency might preclude an alien 10 from showing that an IJ was compelled to find him credible. 11 Multiple inconsistencies would so preclude even more 12 forcefully.”); Xiu Xia Lin, 534 F.3d at 167 (allowing agency 13 to rely on cumulative effect of even minor inconsistencies). 14 The agency was not required to accept Ou’s explanations 15 that she was nervous at her interview and could not remember 16 what she said in her interview, whether she had another 17 pregnancy that ended in miscarriage, or when her son was born. 18 See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A 19 petitioner must do more than offer a plausible explanation 20 for his inconsistent statements to secure relief; he must 21 demonstrate that a reasonable fact-finder would be compelled [4] 1 to credit his testimony.” (quotation marks omitted)). 2 Moreover, Ou did not rehabilitate her credibility with 3 reliable corroboration. See Biao Yang v. Gonzales, 496 F.3d 4 268, 273 (2d Cir. 2007) (“An applicant’s failure to 5 corroborate h[er] . . . testimony may bear on credibility, 6 because the absence of corroboration in general makes an 7 applicant unable to rehabilitate testimony that has already 8 been called into question.”). Ou’s son’s birth certificate 9 was inconsistent with her initial testimony regarding his 10 date of birth. See Y.C. v. Holder, 741 F.3d 324, 332 (2d 11 Cir. 2013) (“We generally defer to the agency’s evaluation of 12 the weight to be afforded an applicant’s documentary 13 evidence.”). Her medical records from 2011 did not resolve 14 the inconsistencies regarding the number of pregnancies she 15 had or confirm that she had a child a year earlier. And the 16 agency was not required to credit letters from her mother and 17 aunts. See id. at 334 (upholding BIA’s decision to afford 18 little weight to letter from applicant’s spouse in China); 19 Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 20 2010) (finding letters from relatives and friends did not 21 provide substantial support for claim where authors were [5] 1 “interested witnesses . . . not subject to cross- 2 examination”), overruled on other grounds by Hui Lin Huang v. 3 Holder, 677 F.3d 130 (2d Cir. 2012). 4 In sum, the inconsistencies and lack of reliable 5 corroboration provide substantial evidence for the adverse 6 credibility determination. See 8 U.S.C. 7 § 1158(b)(1)(B)(iii). The adverse credibility determination 8 is dispositive of asylum, withholding of removal, and CAT 9 relief because all three forms of relief are based on the 10 same discredited factual predicate. See Paul v. Gonzales, [11] 444 F.3d 148 , 156–57 (2d Cir. 2006). 12 For the foregoing reasons, the petition for review is 13 DENIED. All pending motions and applications are DENIED and 14 stays VACATED. 15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court