Xiao Ting v. Garland ( 2022 )

19-4295
Xiao Ting v. Garland
BIA
Lurye, IJ
A206 077 055
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 1st day of February, two thousand twenty-
5 two.
6
7 PRESENT:
8 RICHARD C. WESLEY,
9 JOSEPH F. BIANCO,
10 STEVEN J. MENASHI,
11 Circuit Judges.
12 _____________________________________
13
14 ZHU XIAO TING, AKA XIAO TING
15 ZHUO,
16 Petitioner,
17
18 v. 19-4295
19 NAC
20 MERRICK B. GARLAND, UNITED
21 STATES ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Mona Liza F. Lao, Esq.,
26 New York, NY.
27
28 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
29 Assistant Attorney General; Greg
30 D. Mack, Senior Litigation
1 Counsel; Shahrzad Baghai, Trial
2 Attorney, Office of Immigration
3 Litigation, United States
4 Department of Justice, Washington,
5 DC.
6
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 Zhu Xiao Ting, a native and citizen of the
12 People’s Republic of China, seeks review of a November 29,
13 2019, decision of the BIA affirming a February 28, 2018,
14 decision of an Immigration Judge (“IJ”) denying Ting’s
15 application for asylum, withholding of removal, and relief
16 under the Convention Against Torture (“CAT”). In re Zhu Xiao
17 Ting, No. A206 077 055 (B.I.A. Nov. 29. 2019), aff’g No. A206
18 077 055 (Immig. Ct. N.Y. City Feb. 28, 2018). We assume the
19 parties’ familiarity with the underlying facts and procedural
20 history.
21 Under the circumstances, we have reviewed the IJ’s
22 decision as modified by the BIA, i.e., minus the IJ’s findings
23 that the BIA did not reach. See Xue Hong Yang v. U.S. Dep’t
24 of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
25 standards of review are well established. See 8 U.S.C.
2
1 § 1252(b)(4)(B) (“[T]he administrative findings of fact are
2 conclusive unless any reasonable adjudicator would be
3 compelled to conclude to the contrary.”). “[W]e review the
4 agency’s decision for substantial evidence and must defer to
5 the factfinder’s findings based on such relevant evidence as
6 a reasonable mind might accept as adequate to support a
7 conclusion.” Singh v. Garland, 11 F.4th 106, 113 (2d Cir.
8 2021) (internal quotation marks omitted). “The scope of
9 review under the substantial evidence standard is exceedingly
10 narrow, and we will uphold the BIA’s decision unless the
11 petitioner demonstrates that the record evidence was so
12 compelling that no reasonable factfinder could fail to find
13 him eligible for relief.” Id. (internal quotation marks
14 omitted).
15 “Considering the totality of the circumstances, and all
16 relevant factors, a trier of fact may base a credibility
17 determination on the demeanor, candor, or responsiveness of
18 the applicant . . ., the inherent plausibility of the
19 applicant’s . . . account, the consistency between the
20 applicant’s . . . written and oral statements . . ., the
21 internal consistency of each such statement, [and] the
22 consistency of such statements with other evidence of record
3
1 . . . without regard to whether an inconsistency, inaccuracy,
2 or falsehood goes to the heart of the applicant’s claim, or
3 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
4 “We defer . . . to an IJ’s credibility determination unless,
5 from the totality of the circumstances, it is plain that no
6 reasonable fact-finder could make such an adverse credibility
7 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
8 2008); accord Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
9 Cir. 2018). Substantial evidence supports the agency’s
10 determination that Ting was not credible as to her claim that
11 police detained and beat her for attending an underground
12 church in China and that she feared persecution under the
13 family planning policy for having had a child out of wedlock.
14 In finding Ting not credible, the agency reasonably
15 relied on inconsistencies between her credible fear interview
16 and merits hearing regarding why she was detained and whether
17 police beat her. See 8 U.S.C. § 1158(b)(1)(B)(iii); Ming
18 Zhang v. Holder, 585 F.3d 715, 724–25 (2d Cir. 2009) (finding
19 a credible fear interview record reliable when it is
20 typewritten, demonstrates that the applicant understood the
21 questions, reflects questions about past harm or fear of
22 future harm, and is conducted with an interpreter). The
4
1 agency also reasonably relied on Ting’s inconsistent evidence
2 regarding how many times she had married, how she met her
3 current husband, and when she attended church. See 8 U.S.C.
4 § 1158(b)(1)(B)(iii). Ting did not provide compelling
5 explanations for the inconsistencies. See Majidi v.
6 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
7 do more than offer a plausible explanation for his
8 inconsistent statements to secure relief; he must demonstrate
9 that a reasonable fact-finder would be compelled to credit
10 his testimony.” (internal quotation marks omitted)).
11 The agency also reasonably relied on her failure to
12 rehabilitate her testimony with reliable corroborating
13 evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“Where the trier
14 of fact determines that the applicant should provide evidence
15 that corroborates otherwise credible testimony, such evidence
16 must be provided unless the applicant does not have the
17 evidence and cannot reasonably obtain the evidence.”); Zou v.
18 Garland, No. 19-2003, 2021 WL 4097775, at *1 (2d Cir. Sept.
19 9, 2021) (“Even absent an adverse credibility determination,
20 a lack of corroboration may be an independent basis for the
21 denial of relief.”). The agency reasonably declined to
22 credit statements from interested parties and acquaintances
5
1 who did not have first-hand knowledge of her alleged
2 persecution in China. See Y.C. v. Holder, 741 F.3d 324, 332,
3 334 (2d Cir. 2013) (deferring to agency’s determination of
4 weight of evidence).
5 Given the inconsistencies and lack of reliable
6 corroboration, the agency’s adverse credibility determination
7 is supported by substantial evidence. See 8 U.S.C.
8 § 1158(b)(1)(B)(iii). That determination is dispositive of
9 asylum, withholding of removal, and CAT relief because all
10 three claims were based on the same factual predicate. See
11 Paul v. Gonzales, 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
18
6