17-460 Ma v. Sessions BIA Hom, IJ A202 042 405 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 24th day of September, two thousand eighteen. 5 6 PRESENT: 7 JON O. NEWMAN, 8 DENNIS JACOBS, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 _____________________________________ 12 13 HUILING MA, 14 Petitioner, 15 16 v. 17-460 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Keith S. Barnett, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Mary Jane 27 Candaux, Assistant Director; 28 Edward E. Wiggers, Senior 29 Litigation Counsel, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 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
4 is DENIED.
5 Petitioner Huiling Ma, a native and citizen of the
6 People’s Republic of China, seeks review of a January 27,
7 2017, decision of the BIA affirming a June 27, 2016, decision
8 of an Immigration Judge (“IJ”) denying Ma’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Huiling Ma, No. A
11 202 042 405 (B.I.A. Jan. 27, 2017), aff’g No. A 202 042 405
12 (Immig. Ct. N.Y. City June 27, 2016). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA, reaching only the
17 adverse credibility ruling. Xue Hong Yang v. U.S. Dep’t of
18 Justice, 426 F.3d 520, 522 (2d Cir. 2005). We review
19 adverse credibility determinations under a substantial
20 evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
21 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The
2 1 governing REAL ID Act credibility standard provides as
2 follows:
3 4 Considering the totality of the circumstances, and 5 all relevant factors, a trier of fact may base a 6 credibility determination on . . . the consistency 7 between the applicant’s or witness’s written and 8 oral statements . . . the internal consistency of 9 each such statement, the consistency of such 10 statements with other evidence of record . . . and 11 any inaccuracies or falsehoods in such statements, 12 without regard to whether an inconsistency, 13 inaccuracy, or falsehood goes to the heart of the 14 applicant’s claim, or any other relevant factor. 15 16 8 U.S.C. § 1158(b)(1)(B)(iii).
17 “[A]n IJ may rely on any inconsistency or omission in
18 making an adverse credibility determination as long as the
19 ‘totality of the circumstances’ establishes that an asylum
20 applicant is not credible.” Xiu Xia Lin, 534 F.3d at 167.
21 “We defer . . . to an IJ’s credibility determination unless
22 . . . it is plain that no reasonable fact-finder could make
23 such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
24 at 167. “[A] material inconsistency in an aspect of [the
25 applicant]’s story that served as an example of the very
26 persecution from which [s]he sought asylum” can provide
27 substantial evidence for an adverse credibility ruling.
28 Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295
29 3 1 (2d Cir. 2006) (quoting Majidi v. Gonzales, 430 F.3d 77, 81
2 (2d Cir. 2005)).
3 The agency reasonably concluded that Ma was not
4 credible because her application, asylum interview, and
5 testimony gave inconsistent accounts of her main allegation
6 of past persecution. She gave two different versions of
7 how she escaped from the hospital when doctors were about
8 to perform a forced abortion. At the June 13, 2016,
9 hearing before the IJ, she testified that when her husband
10 heard her screaming, he “rushed into the room, and he
11 pushed away the doctor. So we ran out together.”
12 Certified Administrative Record 76. However, in her
13 October 27, 2014, asylum interview, she claimed that she
14 told a doctor that “[w]e want to use the bathroom. While
15 we used the bathroom we ran away stealthily.’” 96. There
16 was no testimony about using the bathroom as an excuse to
17 accomplish an escape until she was confronted with her
18 previous asylum interview.
19 This inconsistency amounts to substantial evidence for
20 the adverse credibility ruling because it calls into
21 question Ma’s claim that she was targeted for a forced
22 abortion and undermines her credibility as a whole. Xian
4 1 Tuan Ye, 446 F.3d at 294-95; Majidi, 430 F.3d at 80; see
2 also Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)
3 (“[A] single false document or a single instance of false
4 testimony may (if attributable to the petitioner) infect
5 the balance of the alien’s uncorroborated or
6 unauthenticated evidence.”).
7 The agency was not required to accept Ma’s explanation
8 for the discrepancy because it did not explain why she
9 initially described her escape as stealthy, but later
10 testified to screaming and pushing the doctors in order to
11 escape. See Majidi, 430 F.3d at 80 (“A petitioner must do
12 more than offer a plausible explanation for his inconsistent
13 statements to secure relief; he must demonstrate that a
14 reasonable fact-finder would be compelled to credit his
15 testimony.” (internal quotation marks and citations
16 omitted)).
17 Nor did the agency err in relying on the record of the
18 asylum interview, which contained a “meaningful, clear, and
19 reliable summary of the statements made by [the applicant] at
20 the interview.” Diallo v. Gonzales, 445 F.3d 624, 632 (2d
21 Cir. 2006) (citation and internal quotation marks omitted).
22 Ma has not challenged the reliability of the interview record,
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17-460 Ma v. Sessions BIA Hom, IJ A202 042 405 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 24th day of September, two thousand eighteen. 5 6 PRESENT: 7 JON O. NEWMAN, 8 DENNIS JACOBS, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 _____________________________________ 12 13 HUILING MA, 14 Petitioner, 15 16 v. 17-460 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Keith S. Barnett, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Mary Jane 27 Candaux, Assistant Director; 28 Edward E. Wiggers, Senior 29 Litigation Counsel, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 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
4 is DENIED.
5 Petitioner Huiling Ma, a native and citizen of the
6 People’s Republic of China, seeks review of a January 27,
7 2017, decision of the BIA affirming a June 27, 2016, decision
8 of an Immigration Judge (“IJ”) denying Ma’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Huiling Ma, No. A
11 202 042 405 (B.I.A. Jan. 27, 2017), aff’g No. A 202 042 405
12 (Immig. Ct. N.Y. City June 27, 2016). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA, reaching only the
17 adverse credibility ruling. Xue Hong Yang v. U.S. Dep’t of
18 Justice, 426 F.3d 520, 522 (2d Cir. 2005). We review
19 adverse credibility determinations under a substantial
20 evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
21 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The
2 1 governing REAL ID Act credibility standard provides as
2 follows:
3 4 Considering the totality of the circumstances, and 5 all relevant factors, a trier of fact may base a 6 credibility determination on . . . the consistency 7 between the applicant’s or witness’s written and 8 oral statements . . . the internal consistency of 9 each such statement, the consistency of such 10 statements with other evidence of record . . . and 11 any inaccuracies or falsehoods in such statements, 12 without regard to whether an inconsistency, 13 inaccuracy, or falsehood goes to the heart of the 14 applicant’s claim, or any other relevant factor. 15 16 8 U.S.C. § 1158(b)(1)(B)(iii).
17 “[A]n IJ may rely on any inconsistency or omission in
18 making an adverse credibility determination as long as the
19 ‘totality of the circumstances’ establishes that an asylum
20 applicant is not credible.” Xiu Xia Lin, 534 F.3d at 167.
21 “We defer . . . to an IJ’s credibility determination unless
22 . . . it is plain that no reasonable fact-finder could make
23 such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
24 at 167. “[A] material inconsistency in an aspect of [the
25 applicant]’s story that served as an example of the very
26 persecution from which [s]he sought asylum” can provide
27 substantial evidence for an adverse credibility ruling.
28 Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295
29 3 1 (2d Cir. 2006) (quoting Majidi v. Gonzales, 430 F.3d 77, 81
2 (2d Cir. 2005)).
3 The agency reasonably concluded that Ma was not
4 credible because her application, asylum interview, and
5 testimony gave inconsistent accounts of her main allegation
6 of past persecution. She gave two different versions of
7 how she escaped from the hospital when doctors were about
8 to perform a forced abortion. At the June 13, 2016,
9 hearing before the IJ, she testified that when her husband
10 heard her screaming, he “rushed into the room, and he
11 pushed away the doctor. So we ran out together.”
12 Certified Administrative Record 76. However, in her
13 October 27, 2014, asylum interview, she claimed that she
14 told a doctor that “[w]e want to use the bathroom. While
15 we used the bathroom we ran away stealthily.’” 96. There
16 was no testimony about using the bathroom as an excuse to
17 accomplish an escape until she was confronted with her
18 previous asylum interview.
19 This inconsistency amounts to substantial evidence for
20 the adverse credibility ruling because it calls into
21 question Ma’s claim that she was targeted for a forced
22 abortion and undermines her credibility as a whole. Xian
4 1 Tuan Ye, 446 F.3d at 294-95; Majidi, 430 F.3d at 80; see
2 also Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)
3 (“[A] single false document or a single instance of false
4 testimony may (if attributable to the petitioner) infect
5 the balance of the alien’s uncorroborated or
6 unauthenticated evidence.”).
7 The agency was not required to accept Ma’s explanation
8 for the discrepancy because it did not explain why she
9 initially described her escape as stealthy, but later
10 testified to screaming and pushing the doctors in order to
11 escape. See Majidi, 430 F.3d at 80 (“A petitioner must do
12 more than offer a plausible explanation for his inconsistent
13 statements to secure relief; he must demonstrate that a
14 reasonable fact-finder would be compelled to credit his
15 testimony.” (internal quotation marks and citations
16 omitted)).
17 Nor did the agency err in relying on the record of the
18 asylum interview, which contained a “meaningful, clear, and
19 reliable summary of the statements made by [the applicant] at
20 the interview.” Diallo v. Gonzales, 445 F.3d 624, 632 (2d
21 Cir. 2006) (citation and internal quotation marks omitted).
22 Ma has not challenged the reliability of the interview record,
5 1 which reflects that Ma brought her own Mandarin interpreter
2 and understood the asylum officer’s questions. Ma also
3 argues, that the record was not formally accepted into
4 evidence and she was not given an opportunity to object or
5 cross examine the asylum officer. These arguments are
6 without merit and unexhausted. The interview record was
7 admissible as impeachment evidence; Ma’s counsel did not
8 object when the Government introduced it; and Ma did not take
9 issue with its admission on appeal to the BIA. See Lin Zhong
10 v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007)
11 (requiring petitioners to exhaust issues before the BIA).
12 Accordingly, the agency did not err in relying on the
13 inconsistency between the asylum interview and Ma’s hearing
14 testimony.
15 Because Ma’s claims were all based on the same factual
16 predicate, the adverse credibility determination is
17 dispositive of asylum, withholding of removal, and CAT
18 relief. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
19 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. Any pending request for oral argument in this
22 petition is DENIED in accordance with Federal Rule of
6 1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
2 34.1(b).
3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5 Clerk of Court