18-2774 Wang v. Garland BIA Vomacka, IJ A205 222 165 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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of April, two thousand twenty-one.
PRESENT: JON O. NEWMAN, REENA RAGGI, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________
YANQING WANG, Petitioner,
v. 18-2774 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. 1 _____________________________________
FOR PETITIONER: Stuart Altman, Law Office of Stuart Altman, New York, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; Kohsei Ugumori, Senior Litigation Counsel; Nehal H. Kamani, Trial Attorney, Office
1The Clerk of Court is respectfully directed to amend the caption as set forth above. of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Yanqing Wang, a native and citizen of the
People’s Republic of China, seeks review of a decision of the
BIA affirming an Immigration Judge’s (“IJ”) denial of Wang’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Yanqing
Wang, No. A205 222 165 (B.I.A. Sept. 7, 2018), aff’g No. A205
222 165 (Immig. Ct. N.Y.C. Apr. 14, 2017). We assume the
parties’ familiarity with the underlying facts and procedural
history.
Under the circumstances, we have reviewed the IJ’s
decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
(2d Cir. 2018).
“Considering the totality of the circumstances, and all 2 relevant factors, a trier of fact may base a credibility
determination on the demeanor, candor, or responsiveness of
the applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency between the
applicant’s or witness’s written and oral statements . . . ,
the internal consistency of each such statement . . . without
regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim, or any other
relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163–64 (2d Cir. 2008).
“We defer . . . to an IJ’s credibility determination unless,
from the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin, 534 F.3d at 167; accord Hong Fei Gao,
891 F.3d at 76. Substantial evidence supports the agency’s
determination that Wang was not credible as to her claim that
family planning officials forced her to terminate a
pregnancy.
The IJ reasonably found that Wang gave the impression
that her testimony was based on a memorized script rather
than on actual experience. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d 3 77, 81 n.1 (2d Cir. 2005). This finding is supported by the
record, which shows that Wang gave concise testimony on direct
examination that closely tracked her written statement, but
that she became evasive on cross-examination when asked about
her earlier application for a U.S. student visa. Further,
this line of questioning revealed that Wang attempted to
travel to the United States before her alleged pregnancy and
forced abortion, which conflicted with her written statement
and earlier testimony that she decided to leave China as a
result of being forced to terminate her pregnancy. See Li
Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.
2006) (“We can be still more confident in our review of
observations about an applicant’s demeanor where, as here,
they are supported by specific examples of inconsistent
testimony.”).
Not discernable from the written transcript is the IJ’s
stated observation that Wang testified about the alleged
persecution she suffered with a flat affect and no change in
facial expressions. Because “the IJ’s ability to observe
[Wang’s] demeanor place[d] h[im] in the best position to
evaluate whether apparent problems in [Wang’s] testimony
suggest[ed] a lack of credibility,” we afford “particular 4 deference” to that finding. Jin Chen v. U.S. Dep’t of
Justice, 426 F.3d 104, 113 (2d Cir. 2005).
The agency also reasonably relied on the inconsistency
between Wang’s testimony that she had been forced to have an
abortion and her medical records from her son’s birth in the
United States, which state that she had been pregnant only
once and had never had an abortion. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). The IJ was not compelled to credit
Wang’s explanation for the discrepancy. See Majidi, 430 F.3d
at 80 (“A petitioner must do more than offer a plausible
explanation for his inconsistent statements to secure relief;
he must demonstrate that a reasonable fact-finder would be
compelled to credit his testimony.” (internal quotations
omitted)).
Having questioned Wang’s credibility, the agency
reasonably relied further on her failure to rehabilitate her
testimony with reliable corroborating evidence. “An
applicant’s failure to corroborate his or her testimony may
bear on credibility, because the absence of corroboration in
general makes an applicant unable to rehabilitate testimony
that has already been called into question.” Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency 5 reasonably declined to credit a letter from Wang’s mother
because it was unsworn and written by an interested witness
who was not available for cross-examination. See Y.C. v.
Holder, 741 F.3d 324, 334 (2d Cir. 2013). Further, the IJ
reasonably afforded limited weight to the medical record of
Wang’s abortion because it was a handwritten booklet easily
Free access — add to your briefcase to read the full text and ask questions with AI
18-2774 Wang v. Garland BIA Vomacka, IJ A205 222 165 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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of April, two thousand twenty-one.
PRESENT: JON O. NEWMAN, REENA RAGGI, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________
YANQING WANG, Petitioner,
v. 18-2774 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. 1 _____________________________________
FOR PETITIONER: Stuart Altman, Law Office of Stuart Altman, New York, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; Kohsei Ugumori, Senior Litigation Counsel; Nehal H. Kamani, Trial Attorney, Office
1The Clerk of Court is respectfully directed to amend the caption as set forth above. of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Yanqing Wang, a native and citizen of the
People’s Republic of China, seeks review of a decision of the
BIA affirming an Immigration Judge’s (“IJ”) denial of Wang’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Yanqing
Wang, No. A205 222 165 (B.I.A. Sept. 7, 2018), aff’g No. A205
222 165 (Immig. Ct. N.Y.C. Apr. 14, 2017). We assume the
parties’ familiarity with the underlying facts and procedural
history.
Under the circumstances, we have reviewed the IJ’s
decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
(2d Cir. 2018).
“Considering the totality of the circumstances, and all 2 relevant factors, a trier of fact may base a credibility
determination on the demeanor, candor, or responsiveness of
the applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency between the
applicant’s or witness’s written and oral statements . . . ,
the internal consistency of each such statement . . . without
regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim, or any other
relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163–64 (2d Cir. 2008).
“We defer . . . to an IJ’s credibility determination unless,
from the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin, 534 F.3d at 167; accord Hong Fei Gao,
891 F.3d at 76. Substantial evidence supports the agency’s
determination that Wang was not credible as to her claim that
family planning officials forced her to terminate a
pregnancy.
The IJ reasonably found that Wang gave the impression
that her testimony was based on a memorized script rather
than on actual experience. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d 3 77, 81 n.1 (2d Cir. 2005). This finding is supported by the
record, which shows that Wang gave concise testimony on direct
examination that closely tracked her written statement, but
that she became evasive on cross-examination when asked about
her earlier application for a U.S. student visa. Further,
this line of questioning revealed that Wang attempted to
travel to the United States before her alleged pregnancy and
forced abortion, which conflicted with her written statement
and earlier testimony that she decided to leave China as a
result of being forced to terminate her pregnancy. See Li
Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.
2006) (“We can be still more confident in our review of
observations about an applicant’s demeanor where, as here,
they are supported by specific examples of inconsistent
testimony.”).
Not discernable from the written transcript is the IJ’s
stated observation that Wang testified about the alleged
persecution she suffered with a flat affect and no change in
facial expressions. Because “the IJ’s ability to observe
[Wang’s] demeanor place[d] h[im] in the best position to
evaluate whether apparent problems in [Wang’s] testimony
suggest[ed] a lack of credibility,” we afford “particular 4 deference” to that finding. Jin Chen v. U.S. Dep’t of
Justice, 426 F.3d 104, 113 (2d Cir. 2005).
The agency also reasonably relied on the inconsistency
between Wang’s testimony that she had been forced to have an
abortion and her medical records from her son’s birth in the
United States, which state that she had been pregnant only
once and had never had an abortion. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). The IJ was not compelled to credit
Wang’s explanation for the discrepancy. See Majidi, 430 F.3d
at 80 (“A petitioner must do more than offer a plausible
explanation for his inconsistent statements to secure relief;
he must demonstrate that a reasonable fact-finder would be
compelled to credit his testimony.” (internal quotations
omitted)).
Having questioned Wang’s credibility, the agency
reasonably relied further on her failure to rehabilitate her
testimony with reliable corroborating evidence. “An
applicant’s failure to corroborate his or her testimony may
bear on credibility, because the absence of corroboration in
general makes an applicant unable to rehabilitate testimony
that has already been called into question.” Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency 5 reasonably declined to credit a letter from Wang’s mother
because it was unsworn and written by an interested witness
who was not available for cross-examination. See Y.C. v.
Holder, 741 F.3d 324, 334 (2d Cir. 2013). Further, the IJ
reasonably afforded limited weight to the medical record of
Wang’s abortion because it was a handwritten booklet easily
subject to alteration, and it did not reflect that family
planning officials were involved or that the abortion was
involuntary. See id. at 332 (“We generally defer to the
agency’s evaluation of the weight to be afforded an
applicant's documentary evidence.”).
Given the demeanor, inconsistency, and corroboration
findings, the agency’s adverse credibility determination is
supported by substantial evidence. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). Contrary to Wang’s contention, that
determination is dispositive of asylum, withholding of
removal, and CAT relief insofar as those claims were based on
Wang’s assertion that family planning officials forced her to
terminate a pregnancy. See Paul v. Gonzales, 444 F.3d 148,
156–57 (2d Cir. 2006). Wang does not separately challenge
the agency’s conclusion that she did not establish a well-
founded fear of future persecution based on possible future 6 pregnancies. There is no merit to Wang’s contention that the
IJ’s findings underlying the adverse credibility
determination demonstrate bias because those findings are
supported by the record.
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court