Xiang Yuan Song v. Yates ( 2017 )

15-2402
Song v. Yates
BIA
Vomacka, IJ
A087 980 868
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.
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
27th day of January , two thousand seventeen.
PRESENT:
DENNIS JACOBS,
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
XIANG YUAN SONG,
Petitioner,
v. 15-2402
NAC
SALLY Q. YATES, ACTING UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jay Ho Lee, New York, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Anthony
P. Nicastro, Acting Assistant
 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting
Attorney General Sally Q. Yates is automatically substituted for
former Attorney General Loretta E. Lynch as Respondent.
Director; Bernard A. Joseph, Trial
Attorney, 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 Xiang Yuan Song, a native and citizen of China,
seeks review of a January 22, 2014, decision of the BIA,
affirming a May 2, 2012, decision of an Immigration Judge (“IJ”)
denying Song’s application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In
re Xiang Yuan Song, No. A087 980 868 (B.I.A. Jan. 22, 2014),
aff’g No. A087 980 868 (Immig. Ct. N.Y.C. May 2, 2012). We
assume the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed both
the IJ’s and BIA’s decisions. Guan v. Gonzales, 432 F.3d 391,
394 (2d Cir. 2005). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
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For asylum applications like Song’s, governed by the REAL
ID Act, the agency may, “[c]onsidering the totality of the
circumstances,” base a negative credibility finding on an
asylum applicant’s “demeanor, candor, or responsiveness,” the
plausibility of her account, and inconsistencies in her
statements “without regard to whether” the inconsistencies go
“to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
defer . . . to an IJ’s credibility determination unless, from
the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin, 534 F.3d at 167. Substantial evidence
supports the agency’s determination that Song was not credible.
The agency’s determination that Song lacked credibility
with respect to her alleged religious persecution, which Song
does not challenge, infects her forced abortion claim as well.
Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (holding
that “a single false document or a single instance of false
testimony may (if attributable to the petitioner) infect the
balance of the alien’s uncorroborated or unauthenticated
evidence.”). Furthermore, in considering the totality of the
circumstances, as it was required to do, the agency properly
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examined Song’s inconsistent statements and demeanor problems
as a whole. See 8 U.S.C. § 1158(b)(1)(B)(iii).
Moreover, even if Song’s forced abortion claim is assessed
in isolation, substantial evidence supports the agency’s
adverse credibility determination. Inconsistencies in Song’s
testimony called into question the timeline of her pregnancy
and undermined her claim as a whole. Song testified that she
was required to have an abortion in part because she was under
20 years old. But she later conceded that she would have been
20 or 21 years old when she became pregnant. Song’s
inconsistent testimony regarding whether and when she finished
school called into question whether she was running a business
and, thus, whether she met the man by whom she became pregnant
through that business. These discrepancies reasonably left
the agency with the impression that Song was not recalling her
own lived experience. Contrary to Song’s position, the agency
may rely on inconsistencies regarding collateral issues where,
as here, the totality of the circumstances reflects a lack of
credibility. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
F.3d at 167.
The agency also reasonably concluded that Song’s
corroborating evidence, including her abortion certificate and
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letters from family in China, was not sufficient to rehabilitate
her testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 273
(2d Cir. 2007); see also Lin v. Gonzales, 446 F.3d 395, 400 (2d
Cir. 2006) (concluding that 1998 State Department report, which
found no evidence that Chinese authorities issue abortion
certificates for involuntary abortions, was probative evidence
that agency could rely on in assessing plausibility of claim).
Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)
(concluding that document drafted by interested witness not
subject to cross examination was entitled to little weight),
overruled on other grounds by Hui Lin Huang v. Holder, 677 F.3d
130 (2d Cir. 2012).
Song also challenges the agency’s reliance on her testimony
regarding a two-month trip to Japan and her use of fraud to
obtain a visa to the United States. These arguments lack merit.
Her testimony on these issues was inconsistent and evasive. 8
U.S.C. § 1158(b)(1)(B)(iii). Song’s return to China after a
two-month trip to Japan in 2008 called into question the
plausibility of her religious persecution claim and cast doubt
on her subjective fear of persecution in China. The IJ was not
compelled to credit Song’s explanation that Japan did not have
as much religious freedom as the United States because it does
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not explain why Song went back to China despite her fear of
persecution. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005).
And, as the agency found, Song’s testimony regarding her
efforts to obtain a U.S. visa was nonresponsive and equivocal.
Song initially insisted that she did not know the documents
submitted to obtain the visa were fraudulent, but later
testified that she spent three days before her consular
interview practicing her false story. Song’s argument that
this fraud cannot be considered in assessing credibility is
misplaced. Although the agency may not rely on false documents
created to flee imminent persecution, Rui Ying Lin v. Gonzales,
445 F.3d 127, 133 (2d Cir. 2006), Song’s situation is
distinguishable. The only imminent persecution alleged was on
account of her religion, and she does not contest her lack of
credibility on that claim.
Given the IJ’s demeanor finding, which Song does not
challenge, and the multiple inconsistencies, the totality of
the circumstances supports the agency’s credibility finding.
Xiu Xia Lin, 534 F.3d at 167. Because Song’s claims for asylum,
withholding of removal, and CAT relief were based on the same
factual predicate, the adverse credibility determination is
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dispositive of all three forms of relief. Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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