Lanying Wang v. Lynch , 628 F. App'x 44 ( 2015 )

14-971
Wang v. Lynch
BIA
Nelson, IJ
A200 752 645
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
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 14th day of October, two thousand fifteen.
PRESENT:
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
LANYING WANG,
Petitioner,
v. 14-971
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Matthew J. Harris,
Brooklyn, New York.
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FOR RESPONDENT: Joyce R. Branda, Acting
Assistant Attorney General;
Derek C. Julius, Senior
Litigation Counsel; Karen
L. Melnik, Trial Attorney;
Tyler C. King, Law Clerk,
Office of Immigration
Litigation, United States
Department of Justice,
Washington D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Lanying Wang, a native and citizen of the
People’s Republic of China, seeks review of a March 26,
2014 decision of the BIA, affirming the June 14, 2012
decision of an Immigration Judge (“IJ”), denying her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re
Lanying Wang, No. A200 752 645 (B.I.A. Mar. 26, 2014),
aff’g No. A200 752 645 (Immig. Ct. N.Y.C. June 14, 2012).
We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
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Under the circumstances of this case, we have reviewed
both the BIA’s and IJ’s opinions. See Zaman v. Mukasey,
514 F.3d 233, 237 (2d Cir. 2008) (per curiam). The
applicable standards of review are well established. 8
U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009). For asylum applications like
Wang’s, governed by the REAL ID Act, the agency may,
“[c]onsidering the totality of the circumstances . . . base
a credibility determination on the demeanor, candor, or
responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account,” and
inconsistencies in an applicant’s statements and other
record evidence “without regard to whether” they go “to the
heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
163-64 (2d Cir. 2008) (per curiam). Here, the agency’s
adverse credibility determination is supported by
substantial evidence.
The IJ reasonably found Wang’s testimony inconsistent
and implausible. Wang testified to intense surveillance
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from family planning officials that consisted of daily
visits to monitor her body shape and eating habits. Wang’s
asylum application included no reference to that
monitoring. The IJ properly relied on this omission in
making her adverse credibility determination, since the
kind of constant pressure Wang testified to was at the
heart of her claim of persecution based on Chinese family
planning policies. See Xian Tuan Ye v. Dep’t of Homeland
Sec., 446 F.3d 289, 295 (2d Cir. 2006) (per curiam); see
also Xiu Xia Lin, 534 F.3d at 166 n.3 (explaining that
inconsistency and omission are “functionally equivalent”
for credibility purposes).
Furthermore, the IJ reasonably found implausible Wang’s
testimony that family planning officials did not require
her to undergo any gynecological exams to make sure the IUD
remained in place. An IJ is entitled to consider whether
an asylum applicant’s testimony is inherently implausible.
Gas v. U.S.Atty.Gen., 400 F.3d 963, 964 (2d Cir. 2008)(per
curiam). Our review of an IJ’s credibility finding is
highly deferential. Id. (internal quotation marks
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omitted). However, the IJ’s findings must be “tethered to
record evidence.” Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir.
2007) (per curiam).
Here, the IJ’s finding is based on Wang’s testimony
that family planning officials had access to medical
facilities to perform abortions. If family planning
officials have access to medical facilities, then it makes
little sense to eschew those facilities in favor of daily
monitoring. Moreover, the IJ reasonably found implausible
Wang’s testimony that officials checked on her body shape
multiple times a day. Wang submitted no country
conditions evidence to show how often Chinese officials
typically monitored violators of the family planning
policy, and “the reasons for [the IJ’s] incredulity are
evident.” Id. It makes little sense that officials would
devote such manpower and resources to one individual, when
more efficient methods of monitoring were available, such
as periodic gynecological testing.
Finally, the IJ reasonably gave little weight to the
letters from Wang’s neighbors. The letters are
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substantially similar to one another and contain several
sentences that appear unaltered in each letter.
“[S]triking similarities between affidavits are an
indication that the statements are ‘canned.’” Mei Chai Ye
v. U.S. Dep’t of Justice, 489 F.3d 517, 524 (2d Cir. 2007)
(citation omitted). Submission of a canned affidavit is
itself a sufficient basis for an adverse credibility
determination. Id. at 526 (“[W]illingness to submit a
false document is in itself sufficient evidence of
incredibility.”). Moreover, these letters were all
submitted by Wang in support of her claim, thus increasing
any suspicion their similarity arouses. Singh v. BIA, 438
F.3d 145, 148 (2d Cir. 2006) (per curiam). The IJ was not
required to credit Wang’s explanation, as her statement
that she asked for letters, but did not tell her neighbors
what to write, did not clarify why the letters are so
similar. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
2005). Accordingly, the IJ reasonably found Wang’s
supporting documents insufficient to rehabilitate her
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incredible testimony. See Biao Yang v. Gonzales, 496 F.3d
268, 273 (2d Cir. 2007) (per curiam).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request
for oral argument in this petition is DENIED in accordance
with Federal Rule of Appellate Procedure 34(a)(2), and
Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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