Wang v. Barr

17-1544
Wang v. Barr
BIA
Cohen, IJ
A200 630 233
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 7th day of October, two thousand twenty.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 BARRINGTON D. PARKER,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 YONGMEI WANG,
14 Petitioner,
15
16 v. 17-1544
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Marta Bachynska, Law Offices of
24 Yevgeny Samokhleb, P.C., New York,
25 NY.
26
27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
28 Attorney General; Carl McIntyre,
29 Assistant Director; Robert D.
30 Tennyson, Trial Attorney, Office
31 of Immigration Litigation, United
1 States Department of Justice,
2 Washington, DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Yongmei Wang, a native and citizen of the
9 People’s Republic of China, seeks review of an April 27, 2017
10 decision of the BIA affirming a September 13, 2016 decision
11 of an Immigration Judge (“IJ”) denying Wang’s application for
12 asylum, withholding of removal, and relief under the
13 Convention Against Torture (“CAT”). In re Yongmei Wang, No.
14 A 200 630 233 (B.I.A. Apr. 27, 2017), aff’g No. A 200 630 233
15 (Immig. Ct. N.Y. City Sept. 13, 2016). We assume the parties’
16 familiarity with the underlying facts and procedural history
17 in this case.
18 We have reviewed the IJ’s decision as the agency’s final
19 order. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.
20 2008). The applicable standards of review are well
21 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
22 Sessions, 891 F.3d 67, 76–77 (2d Cir. 2018).
23 In making a credibility determination, the agency must
2
1 “[c]onsider[] the totality of the circumstances” and may base
2 an adverse credibility finding based on the applicant’s
3 “demeanor, candor, or responsiveness[,] . . . the inherent
4 plausibility of the applicant’s . . . account,”
5 inconsistencies in the applicant’s or witness’s statements or
6 between those statements and other evidence, “without regard
7 to whether an inconsistency, inaccuracy, or falsehood goes to
8 the heart of the applicant’s claim, or any other relevant
9 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to
10 an IJ’s credibility determination unless, from the totality
11 of the circumstances, it is plain that no reasonable fact-
12 finder could make such an adverse credibility ruling.” Xiu
13 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord
14 Hong Fei Gao, 891 F.3d at 76. Although not free of error,
15 the agency’s adverse credibility determination is supported
16 by substantial evidence.
17 As an initial matter, the IJ erroneously categorized
18 Wang’s testimony as inconsistent because his application and
19 his wife’s letter omitted any reference to the minor medical
20 treatment he received after his detention. See Hong Fei Gao,
21 891 F.3d 79–81. Notwithstanding this error, the IJ
22 reasonably relied on several inconsistencies relating to
3
1 Wang’s registration of his first son, his wife’s medical
2 treatment, and how he received evidence from China.
3 Together, these inconsistencies support the credibility
4 determination. See Xiu Xia Lin, 534 F.3d at 167. First,
5 Wang’s explanation that he forgot the registration date did
6 not resolve the inconsistency relating to the registration of
7 his son because he initially testified as to a specific month
8 and year and said it was a month after his son’s birth. See
9 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“A
10 petitioner must do more than offer a plausible explanation
11 for his inconsistent statements to secure relief; he must
12 demonstrate that a reasonable fact-finder would be compelled
13 to credit his testimony.” (internal quotations omitted)).
14 Second, Wang’s explanation that the terms “doctor” and
15 “hospital” are used interchangeably was not compelling
16 because his testimony about the private doctor provided a
17 different factual account than his application, in which he
18 asserted that his wife went to a “hospital” and underwent a
19 procedure. See id.; cf. Gurung v. Barr, 929 F.3d 56, 61–62
20 (2d Cir. 2019). Finally, the IJ was not compelled to accept
21 Wang’s alleged faulty memory to explain discrepancies in his
22 account of his receipt of medical evidence from China. See
4
1 Majidi, 430 F.3d at 80–81.
2 Given these issues with Wang’s testimony, the IJ did
3 not err in concluding that Wang’s failure to provide
4 reliable corroboration further undermined his credibility
5 and prevented him from meeting his burden of proof. See
6 8 U.S.C. § 1158(b)(1)(B)(ii) (IJ may require corroboration
7 even for credible testimony); Biao Yang v. Gonzales, 496
8 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to
9 corroborate his or her testimony may bear on credibility,
10 because the absence of corroboration in general makes an
11 applicant unable to rehabilitate testimony that has already
12 been called into question.”); Chuilu Liu v. Holder, 575
13 F.3d 193, 198 (2d Cir. 2009) (“[T]he alien bears the
14 ultimate burden of introducing such evidence without
15 prompting from the IJ.”). As the IJ noted, Wang did not
16 produce documentation of his own medical treatment or his
17 arrest and detention, and he conceded that he did not
18 attempt to obtain documentation of his arrest. The IJ
19 reasonably found this testimony implausible given Wang’s
20 testimony that he was able to return to work after his 10-
21 day absence without issue. See 8 U.S.C.
22 § 1158(b)(1)(B)(iii); Siewe v. Gonzales, 480 F.3d 160, 168–
5
1 69 (2d Cir. 2007) (“The speculation that inheres in
2 inference is not ‘bald’ if the inference is made available
3 to the factfinder by record facts . . . viewed in the light
4 of common sense and ordinary experience.”).
5 Moreover, the IJ did not err in declining to give weight
6 to Wang’s documentary evidence. A letter from Wang’s wife
7 recounting his arrest was from an interested witness not
8 subject to cross-examination. See Y.C. v. Holder, 741 F.3d
9 324, 334 (2d Cir. 2013) (deferring to agency’s determination
10 that letter from spouse in China was entitled to “‘very little
11 evidentiary weight,’ both because it was unsworn and because
12 it was submitted by an interested witness”). The IJ
13 reasonably accorded little weight to an X-ray purportedly
14 confirming his wife’s sterilization and the accompanying
15 medical reports because the X-ray did not include Wang’s
16 wife’s name and Wang’s testimony about his receipt of the X-
17 ray and an accompanying report was inconsistent and vague.
18 Id. Finally, the IJ did not err in determining that the
19 sterilization certificate for Wang’s wife was unreliable
20 because Wang provided the immigration court with a copy
21 containing notations not on the original. See Y.C., 741 F.3d
22 at 334 (“We defer to the agency’s determination of the weight
6
1 afforded to an alien’s documentary evidence.”).
2 In sum, the inconsistencies and the lack of reliable
3 corroboration support the adverse credibility determination
4 under the “totality of the circumstances.” 8 U.S.C.
5 § 1158(b)(1)(B)(iii). The adverse credibility determination
6 is dispositive because asylum, withholding of removal, and
7 CAT relief were all based on the same factual predicate. See
8 Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. All pending motions and applications are DENIED and
11 stays VACATED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
7