Yu Ping Wang v. Lynch ( 2015 )

14-2751
Wang v. Lynch
BIA
Cheng, IJ
A087 755 239
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 8th day of June, two thousand fifteen.
5
6 PRESENT:
7
8 JON O. NEWMAN,
9 BARRINGTON D. PARKER,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _____________________________________
13
14 YU PING WANG,
15 Petitioner,
16
17 v. 14-2751
18 NAC
19
20 LORETTA E. LYNCH, UNITED STATES
21 ATTORNEY GENERAL,1
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Richard Tarzia, Belle Mead, New
26 Jersey.
27
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E.
Lynch is automatically substituted for former Attorney General Eric H. Holder, Jr., as the
Respondent in this case.
1 FOR RESPONDENT: Benjamin C. Mizer, Acting
2 Assistant Attorney General; Derek
3 C. Julius, Senior Litigation
4 Counsel; John M. McAdams, Trial
5 Attorney, Office of Immigration
6 Litigation, United States
7 Department of Justice, Washington,
8 D.C.
910 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Petitioner Yu Ping Wang, a native and citizen of the
15 People’s Republic of China, seeks review of a July 8, 2014,
16 decision of the BIA affirming a May 23, 2013, decision of an
17 Immigration Judge (“IJ”) denying Wang’s application for
18 asylum, withholding of removal, and relief under the
19 Convention Against Torture (“CAT”). In re Yu Ping Wang, No.
20 A087 755 239 (B.I.A. July 8, 2014), aff’g No. A087 755 239
21 (Immig. Ct. N.Y. City May 23, 2013). We assume the parties’
22 familiarity with the underlying facts and procedural history
23 in this case.
24 Under the circumstances of this case, we have reviewed the
25 decision of the IJ as supplemented by the BIA. See Yan Chen
26 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
27 applicable standards of review are well established. See
2
1 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,
2 534 F.3d 162, 165-66 (2d Cir. 2008). The agency may,
3 “[c]onsidering the totality of the circumstances, . . . base
4 a credibility determination on . . . the consistency between
5 the applicant’s or witness’s written and oral statements
6 (whenever made and whether or not under oath and considering
7 the circumstances under which the statements were made), . .
8 . the consistency of such statements with other evidence of
9 record . . ., and any inaccuracies or falsehoods in such
10 statements, without regard to whether an inconsistency,
11 inaccuracy, or falsehood goes to the heart of the
12 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
13 Lin, 534 F.3d at 163-64. Substantial evidence supports the
14 agency’s determination that Wang was not credible.
15 The agency reasonably relied on discrepancies between Wang’s
16 testimony and documents submitted in her husband’s two
17 removal proceedings. Wang testified that family planning
18 officials forced her to have one abortion in 2009. However,
19 her husband, Zong, had twice unsuccessfully applied for
20 asylum in the United States, and the records of those
21 proceedings included inconsistent letters from Wang
22 asserting that she had undergone forced abortions in 1998
3
1 and 2004, and an abortion certificate confirming the 1998
2 abortion.
3 The IJ was not compelled to credit Wang’s explanation
4 that she did not know that Zong previously had applied for
5 asylum and that she had not prepared the letters submitted
6 in his removal proceedings. See Majidi v. Gonzales, 430
7 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than
8 offer a plausible explanation for his inconsistent
9 statements to secure relief; he must demonstrate that a
10 reasonable fact-finder would be compelled to credit his
11 testimony.” (internal quotation marks and citations
12 omitted)). Despite numerous continuances, Wang did not
13 produce reliable evidence sufficient to corroborate this
14 explanation. See Biao Yang v. Gonzales, 496 F.3d 268, 273
15 (2d Cir. 2007) (providing that an applicant’s failure to
16 corroborate testimony may bear on credibility, either
17 because the absence of particular evidence is viewed as
18 suspicious, or because the absence of corroboration in
19 general makes an applicant unable to rehabilitate testimony
20 already called into question).
21 First, the IJ reasonably declined to credit Zong’s
22 unsworn letters stating that Wang had only one abortion in
4
1 2009 and had not submitted the letters in his proceedings
2 because he was an interested party who was not made
3 available via telephone for cross-examination. See Y.C. v.
4 Holder, 741 F.3d 324, 332 (2d Cir. 2013) (deferring to the
5 agency’s decision to afford little weight to petitioner’s
6 husband’s letter stating that Chinese authorities were
7 looking for her on account of her political activities in
8 the United States because the letter was unsworn and was
9 submitted by an interested witness). Contrary to Wang’s
10 contention, the IJ was not compelled to credit Zong’s
11 unsworn letters simply because she relied on unsworn letters
12 allegedly prepared by Wang to question Wang’s credibility.
13 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 171 (2d Cir.
14 2008) (“We do not ourselves attempt to resolve conflicts in
15 record evidence, a task largely within the discretion of the
16 agency.”). That is particularly so given that the IJ
17 continued proceedings in part to provide Zong an opportunity
18 to attest to the veracity of his letters before the U.S.
19 consulate in China, but he did not do so. Wang did not
20 provide a compelling explanation for this failure. See
21 Majidi, 430 F.3d at 80.
22
5
1 The IJ also did not err in declining to credit a report
2 prepared in China, in which two Judicial Authenticators
3 conclude (based on handwriting analysis) that the letters
4 submitted in Zong’s proceedings were not written by Wang.
5 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
6 341-42 (2d Cir. 2006) (holding that determination of the
7 weight of evidence is largely a matter of IJ discretion).
8 As the IJ found, there was no information regarding what
9 training the Judicial Authenticators completed to qualify as
10 experts in handwriting analysis or how they obtained their
11 Judicial Authenticator’s Licenses.
12 Ultimately, the agency’s adverse credibility determination
13 is supported by substantial evidence. See 8 U.S.C.
14 § 1158(b)(1)(B)(iii). That finding is dispositive of
15 asylum, withholding of removal, and CAT relief because those
16 claims were based on the same factual predicate. See Paul
17 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
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
6
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
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