Tang v. Sessions

• Court: Court of Appeals for the Second Circuit
• Decided: September 17, 2018
• Docket: 16-3758
• Status: Unpublished

Opinion

16-3758 Tang v. Sessions BIA Hom, IJ A200 168 577 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 17th day of September, two thousand 5 eighteen. 6 7 PRESENT: 8 JOHN M. WALKER, JR., 9 REENA RAGGI, 10 DENNY CHIN, 11 Circuit Judges. 12 _____________________________________ 13 YING TANG, 14 Petitioner, 15 16 v. 16-3758 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Charles Christophe, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Carl McIntyre, 27 Assistant Director; Kevin J. 28 Conway, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 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 Ying Tang, a native and citizen of the

6 People’s Republic of China, seeks review of a BIA decision

7 affirming an Immigration Judge’s (“IJ”) denial of Tang’s

8 application for asylum, withholding of removal, and relief

9 under the Convention Against Torture (“CAT”). In re Ying

10 Tang, No. A200 168 577 (B.I.A. Oct. 7, 2016), aff’g No. A200

11 168 577 (Immig. Ct. N.Y. City May 20, 2015). Under the

12 circumstances of this case, we review both the IJ’s and the

13 BIA’s opinions “for the sake of completeness,” Wangchuck v.

14 Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006), and

15 address only the adverse credibility determination, applying

16 well-established standards of review, see 8 U.S.C.

17 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

18 66 (2d Cir. 2008) (reviewing adverse credibility

19 determination for substantial evidence). In doing so, we

20 assume the parties’ familiarity with the underlying facts and

21 procedural history in this case.

2 1 For applications such as Tang’s, governed by the REAL ID

2 Act of 2005, the agency may, “considering the totality of the

3 circumstances,” base a credibility finding on an applicant’s

4 “demeanor, candor, or responsiveness,” as well as

5 inconsistencies in her statements and other record evidence

6 “without regard to whether” those inconsistencies go “to the

7 heart of the applicant’s claim.” 8 U.S.C.

8 § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 163-64.

9 “We defer . . . to an IJ’s credibility determination unless,

10 from the totality of the circumstances, it is plain that no

11 reasonable fact-finder could make such an adverse credibility

12 ruling.” Xiu Xia Lin, 534 F.3d at 167. By these standards,

13 substantial evidence supports the agency’s determination that

14 Tang was not credible as to her claim that Chinese family

15 planning officials ordered her to terminate a pregnancy and

16 attempted forcibly to sterilize her for violating China’s

17 family planning policy.

18 First, the agency reasonably relied in part on Tang’s

19 demeanor, noting that she became nervous, evasive, and

20 unresponsive on cross-examination. See 8 U.S.C.

21 § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d

22 77, 81 n.1 (2d Cir. 2005) (recognizing that particular

3 1 deference is given to the trier of fact’s assessment of

2 demeanor). That finding is supported by the record.

3 Second, the demeanor finding and the adverse credibility

4 determination are bolstered by record inconsistencies. See

5 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d

6 Cir. 2006). The agency reasonably found Tang’s interview

7 statement that her husband had informed her that she had been

8 ordered to report for an abortion inconsistent with her

9 hearing testimony that family planning officials had come to

10 her home to inform her directly of that reporting obligation.

11 See Xiu Xia Lin, 534 F.3d at 165-67; see also Diallo v.

12 Gonzales, 445 F.3d 624, 632 (2d Cir. 2006). The agency also

13 reasonably noted evidentiary inconsistencies regarding the

14 reasons family planning officials purportedly gave for

15 targeting her for an abortion. See 8 U.S.C.

16 § 1158(b)(1)(B)(iii). Tang did not provide compelling

17 explanations for these inconsistencies. See Majidi, 430 F.3d

18 at 80 (“A petitioner must do more than offer a plausible

19 explanation for [her] inconsistent statements to secure

20 relief; [s]he must demonstrate that a reasonable fact-finder

21 would be compelled to credit [her] testimony.” (internal

22 quotation marks omitted)).

4 1 Finally, having questioned Tang’s credibility, the

2 agency reasonably relied on her failure to rehabilitate her

3 credibility with corroborating evidence. See Biao Yang v.

4 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency did

5 not err in declining to credit Tang’s husband’s letter because

6 it was unsworn and her husband was an interested party who

7 was not available for cross-examination. See Y.C. v. Holder,

8 741 F.3d 324, 334 (2d Cir. 2013).

9 Given these demeanor and inconsistency findings, as well

10 as the lack of corroboration, the totality of the

11 circumstances supports the agency’s adverse credibility

12 determination such that no reasonable factfinder would be

13 “compelled to conclude to the contrary.” Majidi, 430 F.3d

14 at 79. That determination is dispositive of Tang’s claims

15 for asylum, withholding of removal, and CAT relief because

16 all three claims are based on the same factual predicate.

17 See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

18 For the foregoing reasons, the petition for review is

19 DENIED. As we have completed our review, any stay of removal

20 that the Court previously granted in this petition is VACATED,

5 1 and any pending motion for a stay of removal in this petition

2 is DISMISSED as moot.

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk of Court