Min Wang v. Lynch , 653 F. App'x 35 ( 2016 )

15-1176
Wang v. Lynch
BIA
Laforest, IJ
A200 933 668
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 24th day of June, two thousand sixteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 BARRINGTON D. PARKER,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 MIN WANG,
14 Petitioner,
15
16 v. 15-1176
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas v. Massucci, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Kiley
27 Kane, Senior Litigation Counsel;
28 Annette M. Wietecha, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, D.C.
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 is
4 DENIED.
5 Petitioner Min Wang, a native and citizen of the People’s
6 Republic of China, seeks review of a March 19, 2015, decision
7 of the BIA, affirming a January 14, 2013, decision of an
8 Immigration Judge (“IJ”) denying Wang’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Min Wang, No. A200 933 668 (B.I.A. Mar.
11 19, 2015), aff’g No. A200 933 668 (Immig. Ct. N.Y. City Jan.
12 14, 2013). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we review both the
15 IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432 F.3d
16 391, 394 (2d Cir. 2005). The applicable standards of review
17 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
18 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
19 For asylum applications like Wang’s, governed by the REAL
20 ID Act, the agency may, “[c]onsidering the totality of the
21 circumstances,” base an adverse credibility determination on
2
1 an asylum applicant’s “demeanor, candor, or responsiveness,”
2 the plausibility of her account, and inconsistencies in her
3 statements, “without regard to whether” they go “to the heart
4 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
5 Xia Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s
6 credibility determination unless, from the totality of the
7 circumstances, it is plain that no reasonable fact-finder could
8 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
9 at 167.
10 As an initial matter, Wang concedes that the adverse
11 credibility determination was properly based on the
12 inconsistency between her testimony and asylum interview about
13 whether her boyfriend was employed and faced penalties for
14 getting her pregnant. Wang also does not challenge the
15 agency’s reliance on the inconsistencies between her testimony
16 and medical records regarding whether she was married at the
17 time of her abortion and the name of the hospital in which her
18 abortion had taken place and the lack of reliable corroborating
19 evidence. She has therefore waived review of these bases for
20 the credibility determination. See Yueqing Zhang v. Gonzales,
21 426 F.3d 540, 542 n.1 (2d Cir. 2005).
3
1 Considering the whole record before us we conclude that
2 even assuming arguendo that Wang’s challenges to certain of the
3 agency’s additional grounds for finding her not credible are
4 valid, the BIA would still have reached the same result on the
5 basis of the evidence it properly considered. In other words,
6 we conclude that “(1) substantial evidence in the record relied
7 on by the [BIA], considered in the aggregate, supports the
8 [BIA’s] finding that petitioner lacked credibility, and (2)
9 disregarding those aspects of the [BIA’s] reasoning that are
10 tainted by error, we can state with confidence that the [BIA]
11 would adhere to [its] decision were the petition remanded.”
12 Siewe v. Gonzales, 480 F.3d 160, 166-67 (2d Cir. 2007) (quoting
13 Singh v. BIA, 438 F.3d 145, 147-48 (2d Cir. 2006)).
14 Because Wang’s claims for asylum, withholding of removal,
15 and CAT relief all relied on the same factual predicate, the
16 adverse credibility determination is dispositive. Paul v.
17 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
18 For the foregoing reasons, the petition for review is
19 DENIED.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
4