Mei Yang v. Lynch , 617 F. App'x 53 ( 2015 )

14-2294
Yang v. Lynch
BIA
Poczter, IJ
A205 430 715
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
8th day of July, two thousand fifteen.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
MEI YANG,
Petitioner,
v. 14-2294
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Joshua Bardavid, New York, NY.
FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
Attorney General; Ernesto H. Molina,
Jr., Assistant Director; S. Nicole
Nardone, 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.
Mei Yang, a native and citizen of the People’s Republic of
China, seeks review of a June 9, 2014, decision of the BIA
affirming the October 21, 2013, decision of an Immigration Judge
(“IJ”), denying her application for asylum, withholding of
removal, and relief pursuant to the Convention Against Torture
(“CAT”). In re Mei Yang, No. A205 430 715 (B.I.A. June 9, 2014),
aff’g No. A205 430 715 (Immig. Ct. N.Y.C. Oct. 21, 2013). We
assume the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed the
decisions of both the IJ and the BIA “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
For asylum applications like Yang’s, governed by the REAL
ID Act of 2005, the agency may, “[c]onsidering the totality of
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the circumstances,” base a credibility determination on
inconsistencies in an asylum applicant’s statements and other
record evidence “without regard to whether” the inconsistencies
go “to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). “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” a
ruling. Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)
(per curiam). Substantial evidence supports the agency’s
adverse credibility determination.
In denying relief, the agency reasonably based its adverse
credibility determination on inconsistencies between Yang’s
testimony and record evidence regarding her alleged forced
abortion—the crux of her asylum claim. See Xian Tuan Ye v.
Dep’t of Homeland Sec., 446 F.3d 289, 295-96 (2d Cir. 2006) (per
curiam). Yang testified that she was forced to have an
abortion by Chinese authorities on June 25, 2010, but her
medical records showed that she told her doctor in December 2011
that she had a voluntary abortion one year earlier, i.e., in
December 2010, not June 2010.
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Although a forced abortion in June 2010 could have been
followed by a voluntary abortion in December 2010, Yang
testified that the abortion that she said occurred in June 2010
is the same one that she told her doctor occurred in December
2010:
“Q. Did you tell the doctor that you had an abortion in
December 2010?
“A. Yes.
“Q. But your story here in Court was that you had an abortion
I believe in May1 of 2010. Isn’t that correct?
“A. Yes.
“Q. Why would you tell the doctor that you had an abortion
in December 2011? That doesn’t make any sense.
“A. Because at that time I was not very paying attention
answering doctor’s questions. Also, they [sic] date for me is
very sensitive, so I changed the date and told him differently.”
ROA 124.
The agency was not required to credit her explanation for
this inconsistency. See Majidi v. Gonzales, 430 F.3d 77, 80-81
(2d Cir. 2005).
1. The questioner obviously meant “June,” the month Yang had stated.
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The agency also reasonably relied on discrepancies
regarding when Yang allegedly entered the United States. Yang
testified that she entered the United States on August 8, 2011,
but her medical records showed that she told her doctor at an
August 2011 appointment that she entered the United States five
months earlier. The agency reasonably relied further on Yang’s
failure to mention, until confronted with her medical records,
that she visited a doctor the day that she arrived in the United
States. The agency was not required to credit her explanations
for these inconsistencies. See Majidi, 430 F.3d at 80-81.
Having questioned Yang’s credibility, the agency
reasonably determined that her corroborating evidence failed
to rehabilitate her incredible testimony. An applicant’s
failure to corroborate testimony may bear on credibility,
either because the absence of particular corroborating evidence
is viewed as suspicious, or because the absence of corroboration
in general makes an applicant unable to rehabilitate testimony
that has already been called into question. See Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
The agency reasonably gave diminished weight to a letter
from Yang’s mother because she was an interested witness not
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subject to cross-examination. See Xiao Ji Chen v. U.S. Dep’t
of Justice, 471 F.3d 315, 342 (2d Cir. 2006); In re H-L-H- &
Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding that
unsworn letters from the alien’s friends and family were
insufficient to provide substantial support for the alien’s
claims because they were interested witnesses not subject to
cross-examination (citations omitted)), overruled on other
grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133-38 (2d
Cir. 2012). The agency also gave limited weight to an abortion
certificate because it had not been authenticated, and showed
only that Yang had an abortion, not that it was forced. Yang
argues that she did not have to authenticate the abortion
certificate. However, even assuming that she was not required
to authenticate the document, the fact remains that the abortion
certificate did not state that her abortion had been forced,
and therefore could not rehabilitate her incredible testimony
on that issue. See Cao He Lin v. U.S. Dep’t of Justice, 428
F.3d 391, 401 (2d Cir. 2005).
Given the inconsistency and corroboration findings,
substantial evidence supports the agency’s adverse credibility
determination. See Xiu Xia Lin, 534 F.3d at 167. The adverse
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credibility determination is dispositive of asylum,
withholding of removal, and CAT relief, as the claims were based
on the same factual predicate. Paul v. Gonzales, 444 F.3d 148,
156-57 (2d Cir. 2006). Because the agency’s adverse
credibility determination is dispositive of all forms of
relief, the Court need not reach the agency’s alternative basis
for denying Yang’s asylum claim — her failure to timely file
her asylum application.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, Yang’s pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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