Rao v. Sessions

Opinion

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

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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

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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

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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

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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