Qiong Yang v. Lynch ( 2016 )

14-3088
Yang v. Lynch
BIA
Nelson, IJ
A089 915 530/531
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 6th day of September, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 RAYMOND J. LOHIER,JR.
10 Circuit Judges.
11 _____________________________________
12
13 QIONG YANG, WEI WANG,
14 Petitioners,
15
16 v. 14-3088
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONERS: Keith S. Barnett, New York,
24 New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Brianne
28 Whelan Cohen, Senior Litigation
29 Counsel; Matthew A. Spurlock, Trial
30 Attorney, Office of Immigration
1 Litigation, United States
2 Department of Justice, Washington,
3 D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Petitioners Qiong Yang and Wei Wang, natives and citizens
10 of the People’s Republic of China, seek review of a July 25,
11 2014, decision of the BIA, affirming a February 28, 2013,
12 decision of an Immigration Judge (“IJ”) denying asylum,
13 withholding of removal, and relief under the Convention Against
14 Torture (“CAT”). In re Qiong Yang, Wei Wang, Nos. A089 915
15 530/531 (B.I.A. July 25, 2014), aff’g Nos. A089 915 530/531
16 (Immig. Ct. N.Y. City Feb. 28, 2013). We assume the parties’
17 familiarity with the underlying facts and procedural history
18 in this case.
19 Under the circumstances of this case, we have reviewed both
20 the IJ’s and the BIA’s opinions “for the sake of completeness.”
21 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
22 2006). The applicable standards of review are well
23 established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
24 534 F.3d 162, 165-66 (2d Cir. 2008). The agency may,
2
1 “[c]onsidering the totality of the circumstances,” base a
2 credibility finding on an asylum applicant’s demeanor and
3 inconsistencies in her statements and other record evidence
4 “without regard to whether” they go “to the heart of the
5 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
6 Lin, 534 F.3d at 163-64. Substantial evidence supports the
7 agency’s determination that Yang was not credible.
8 The agency reasonably relied on Yang’s demeanor, noting
9 that her testimony was hesitant and unresponsive. See 8 U.S.C.
10 § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d 77,
11 81 n.1 (2d Cir. 2005). That finding is supported by the record.
12 The agency’s demeanor finding and the overall credibility
13 determination are bolstered by record inconsistencies. See Li
14 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006);
15 see also Xiu Xia Lin, 534 F.3d at 165-67. For example, Yang
16 changed her testimony several times as to whether her alleged
17 forced abortion occurred in late-May 2000, mid-May 2000, or
18 mid-May 2005. See Xiu Xia Lin, 534 F.3d at 164, 166-67. Her
19 mother’s letter stated that family planning officials would not
20 issue an abortion certificate, but Yang testified that her
21 mother had obtained such a certificate and she submitted it
22 before the IJ. That certificate conflicted with Yang’s
3
1 testimony regarding where the abortion was performed. Yang’s
2 attempts to explain these inconsistencies were not compelling.
3 See Majidi, 430 F.3d at 80.
4 Having questioned Yang’s credibility, the agency
5 reasonably relied further on her failure to submit
6 corroborating evidence sufficient to rehabilitate his
7 testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
8 Cir. 2007). The IJ reasonably declined to credit Yang’s
9 mother’s letter and her abortion certificate given the
10 inconsistencies between that evidence and Yang’s testimony.
11 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d
12 Cir. 2006); see also Xiu Xia Lin, 534 F.3d at 165-66. And the
13 IJ did not err in giving diminished weight to an unsworn letter
14 from Yang’s friend who allegedly accompanied Yang to her family
15 planning appointments. See Y.C. v. Holder, 741 F.3d 324, 334
16 (2d Cir. 2013).
17 Given the demeanor, inconsistency, and lack of
18 corroboration findings, the agency’s adverse credibility
19 determination is supported by substantial evidence. See
20 8 U.S.C. § 1158(b)(1)(B)(iii). That finding is dispositive of
21 asylum, withholding of removal, and CAT relief. See Paul v.
22 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
5