16-4167 Rao v. Sessions BIA Vomacka, IJ A200 181 152 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 20th day of February, two thousand 5 eighteen. 6 7 PRESENT: DENNIS JACOBS, 8 PETER W. HALL, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 AI HUA RAO, 14 Petitioner, 15 16 v. 16-4167 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Dehai Zhang, Flushing, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Briena L. 27 Strippoli, Senior Litigation 28 Counsel; Karen L. Melnik, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 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 Ai Hua Rao, a native and citizen of the
6 People’s Republic of China, seeks review of a November 28,
7 2016, decision of the BIA affirming a January 13, 2016,
8 decision of an Immigration Judge (“IJ”) denying Rao’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Ai Hua
11 Rao, No. A200 181 152 (B.I.A. Nov. 28, 2016), aff’g No.
12 A200 181 152 (Immig. Ct. N.Y. City Jan. 13, 2016). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Wangchuck v. Dep’t of Homeland Security,
18 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards
19 of review are well established. 8 U.S.C. § 1252(b)(4)(B);
20 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.
21 2008). “Considering the totality of the circumstances, and
22 all relevant factors, a trier of fact may base a
2 1 credibility determination on the demeanor, candor, or
2 responsiveness of the applicant or witness, . . . the
3 consistency between the applicant’s or witness’s written
4 and oral statements . . . , the internal consistency of
5 each such statement, [and] the consistency of such
6 statements with other evidence of record . . . without
7 regard to whether an inconsistency, inaccuracy, or
8 falsehood goes to the heart of the applicant’s claim.”
9 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at
10 163-64. Substantial evidence supports the agency’s
11 determination that Rao was not credible as to her claim
12 that Chinese family planning officials terminated a
13 pregnancy and ordered her to be sterilized under China’s
14 family planning policy.
15 The agency reasonably relied on Rao’s demeanor and
16 inconsistent testimony to find her not credible. See
17 8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales,
18 430 F.3d 77, 81 n.1 (2d Cir. 2005) (providing that
19 particular weight is given to the trier of fact’s
20 assessment of demeanor); Li Hua Lin v. U.S. Dep’t of
21 Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still
22 more confident in our review of observations about an
3 1 applicant’s demeanor where, as here, they are supported by
2 specific examples of inconsistent testimony.”). As the IJ
3 found, Rao gave the impression that she was testifying from
4 a memorized script because her testimony was clear,
5 concise, and consistent on direct examination, but became
6 unresponsive, confused, and inconsistent (internally and
7 with other evidence) on cross-examination regarding the
8 following: how many times family planning officials took
9 her by force to undergo family planning procedures; whether
10 and when her husband’s and mother-in-law’s houses were
11 demolished; and how family planning officials discovered
12 that she was living in the United States. See 8 U.S.C.
13 § 1158(b)(1)(B)(iii); see also Li Hua Lin, 453 F.3d at 109.
14 Rao did not compellingly explain the record
15 inconsistencies. See Majidi, 430 F.3d at 80.
16 Having questioned Rao’s credibility, the agency
17 reasonably relied further on her failure to submit
18 corroborating evidence sufficient to rehabilitate her
19 testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 273
20 (2d Cir. 2007). The IJ reasonably gave little weight to an
21 unsworn letter from Rao’s husband because he was an
22 interested witness who was not subject to cross-examination
4 1 and because he had relied on Rao’s written statement to
2 write his letter. See Y.C. v. Holder, 741 F.3d 324, 334
3 (2d Cir. 2013); see also Mei Chai Ye v. U.S. Dep’t of
4 Justice, 489 F.3d 517, 524 (2d Cir. 2007). Similarly, the
5 agency reasonably afforded limited weight to Rao’s
6 brother’s affidavit and testimony given that he was an
7 interested witness and he did not have firsthand knowledge
8 of Rao’s persecution claim or entry into the United States.
9 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
10 342 (2d Cir. 2006) (providing that a determination of the
11 weight of evidence is largely a matter of agency
12 discretion). The agency also reasonably declined to credit
13 a village committee notice, which stated that Rao and her
14 husband are “targets for sterilization,” because the notice
15 does not identify the author and is handwritten on
16 letterhead without a signature, and because correspondence
17 from the Fujian Province Population and Family Planning
18 Commission appended to the 2007 State Department Profile of
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16-4167 Rao v. Sessions BIA Vomacka, IJ A200 181 152 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 20th day of February, two thousand 5 eighteen. 6 7 PRESENT: DENNIS JACOBS, 8 PETER W. HALL, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 AI HUA RAO, 14 Petitioner, 15 16 v. 16-4167 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Dehai Zhang, Flushing, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Briena L. 27 Strippoli, Senior Litigation 28 Counsel; Karen L. Melnik, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 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 Ai Hua Rao, a native and citizen of the
6 People’s Republic of China, seeks review of a November 28,
7 2016, decision of the BIA affirming a January 13, 2016,
8 decision of an Immigration Judge (“IJ”) denying Rao’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Ai Hua
11 Rao, No. A200 181 152 (B.I.A. Nov. 28, 2016), aff’g No.
12 A200 181 152 (Immig. Ct. N.Y. City Jan. 13, 2016). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Wangchuck v. Dep’t of Homeland Security,
18 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards
19 of review are well established. 8 U.S.C. § 1252(b)(4)(B);
20 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.
21 2008). “Considering the totality of the circumstances, and
22 all relevant factors, a trier of fact may base a
2 1 credibility determination on the demeanor, candor, or
2 responsiveness of the applicant or witness, . . . the
3 consistency between the applicant’s or witness’s written
4 and oral statements . . . , the internal consistency of
5 each such statement, [and] the consistency of such
6 statements with other evidence of record . . . without
7 regard to whether an inconsistency, inaccuracy, or
8 falsehood goes to the heart of the applicant’s claim.”
9 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at
10 163-64. Substantial evidence supports the agency’s
11 determination that Rao was not credible as to her claim
12 that Chinese family planning officials terminated a
13 pregnancy and ordered her to be sterilized under China’s
14 family planning policy.
15 The agency reasonably relied on Rao’s demeanor and
16 inconsistent testimony to find her not credible. See
17 8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales,
18 430 F.3d 77, 81 n.1 (2d Cir. 2005) (providing that
19 particular weight is given to the trier of fact’s
20 assessment of demeanor); Li Hua Lin v. U.S. Dep’t of
21 Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still
22 more confident in our review of observations about an
3 1 applicant’s demeanor where, as here, they are supported by
2 specific examples of inconsistent testimony.”). As the IJ
3 found, Rao gave the impression that she was testifying from
4 a memorized script because her testimony was clear,
5 concise, and consistent on direct examination, but became
6 unresponsive, confused, and inconsistent (internally and
7 with other evidence) on cross-examination regarding the
8 following: how many times family planning officials took
9 her by force to undergo family planning procedures; whether
10 and when her husband’s and mother-in-law’s houses were
11 demolished; and how family planning officials discovered
12 that she was living in the United States. See 8 U.S.C.
13 § 1158(b)(1)(B)(iii); see also Li Hua Lin, 453 F.3d at 109.
14 Rao did not compellingly explain the record
15 inconsistencies. See Majidi, 430 F.3d at 80.
16 Having questioned Rao’s credibility, the agency
17 reasonably relied further on her failure to submit
18 corroborating evidence sufficient to rehabilitate her
19 testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 273
20 (2d Cir. 2007). The IJ reasonably gave little weight to an
21 unsworn letter from Rao’s husband because he was an
22 interested witness who was not subject to cross-examination
4 1 and because he had relied on Rao’s written statement to
2 write his letter. See Y.C. v. Holder, 741 F.3d 324, 334
3 (2d Cir. 2013); see also Mei Chai Ye v. U.S. Dep’t of
4 Justice, 489 F.3d 517, 524 (2d Cir. 2007). Similarly, the
5 agency reasonably afforded limited weight to Rao’s
6 brother’s affidavit and testimony given that he was an
7 interested witness and he did not have firsthand knowledge
8 of Rao’s persecution claim or entry into the United States.
9 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
10 342 (2d Cir. 2006) (providing that a determination of the
11 weight of evidence is largely a matter of agency
12 discretion). The agency also reasonably declined to credit
13 a village committee notice, which stated that Rao and her
14 husband are “targets for sterilization,” because the notice
15 does not identify the author and is handwritten on
16 letterhead without a signature, and because correspondence
17 from the Fujian Province Population and Family Planning
18 Commission appended to the 2007 State Department Profile of
19 Asylum Claims and Country Conditions states that village
20 committees do not have the authority to issue such notices.
21 Id.; see also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209,
22 214-15 (BIA 2010) (according little weight to a
5 1 sterilization notice based on the family planning letter
2 appended to the 2007 Profile), overruled on other grounds
3 by Hui Lin Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir.
4 2012).
5 Given the demeanor, inconsistency, and lack of
6 corroboration findings, the agency’s adverse credibility
7 determination is supported by substantial evidence.
8 8 U.S.C. § 1158(b)(1)(B)(iii). That determination is
9 dispositive of Rao’s claims for asylum, withholding of
10 removal, and CAT relief because all three claims are based
11 on the same factual predicate. See Paul v. Gonzales, 444
12 F.3d 148, 156-57 (2d Cir. 2006).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of removal
15 that the Court previously granted in this petition is VACATED,
16 and any pending motion for a stay of removal in this petition
17 is DISMISSED as moot. Any pending request for oral argument
18 in this petition is DENIED in accordance with Federal Rule of
19 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
20 34.1(b).
21 FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk of Court