17-1823 Yang v. Barr BIA Straus, IJ A205 435 091
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 28th day of May, two thousand nineteen. 5 6 PRESENT: 7 ROBERT D. SACK, 8 BARRINGTON D. PARKER, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 MINYING YANG, 14 Petitioner, 15 16 v. 17-1823 17 NAC 18 WILLIAM P. BARR, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: David J. Rodkin, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Douglas E. 27 Ginsburg, Assistant Director; John 28 M. McAdams, Jr., Attorney, Office 29 of 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 Minying Yang, a native and citizen of the
6 People’s Republic of China, seeks review of a May 10, 2017,
7 decision of the BIA affirming a December 7, 2015, decision of
8 an Immigration Judge (“IJ”) denying Yang’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Minying Yang, No.
11 A 205 435 091 (B.I.A. May 10, 2017), aff’g No. A 205 435 091
12 (Immig. Ct. Hartford Dec. 7, 2015). 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, i.e., minus the
17 IJ’s determination that Yang’s testimony conflicted with the
18 country conditions evidence. See Xue Hong Yang v. U.S. Dep’t
19 of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Accordingly,
20 the dispositive issue is whether the findings that the BIA
21 relied on provide substantial evidence for the adverse
22 credibility determination. Id.; see also 8 U.S.C.
2 1 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-
2 66 (2d Cir. 2008). In making a credibility determination,
3 the agency must “[c]onsider[] the totality of the
4 circumstances” and may base a finding on the applicant’s
5 “demeanor, candor, or responsiveness, . . . the inherent
6 plausibility of the applicant’s . . . account,”
7 inconsistencies in the applicant’s statements or between her
8 statements and other evidence, “without regard to whether an
9 inconsistency, inaccuracy, or falsehood goes to the heart of
10 the applicant’s claim, or any other relevant factor.” 8
11 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to [the
12 agency’s] credibility determination unless, from the totality
13 of the circumstances, it is plain that no reasonable fact-
14 finder could make such an adverse credibility ruling.” Xiu
15 Xia Lin, 534 F.3d at 167. We conclude that the adverse
16 credibility determination is supported by substantial
17 evidence.
18 Inconsistencies
19 Discrepancies among Yang’s testimony and her documentary
20 evidence called into question her credibility. For example,
21 Yang testified that after she had the abortion, she returned
22 to work the following Monday. The medical certificate,
3 1 however, indicates that she had the abortion on Friday,
2 December 25, 2009, and was excused from work through Friday,
3 January 9. And the medical certificate does not indicate
4 that the abortion was forced or involuntary. See Tu Lin v.
5 Gonzales, 446 F.3d 395, 400 (2d Cir. 2006) (upholding adverse
6 credibility determination based, in part, on fact that
7 country conditions evidence reflected that abortion
8 certificates were provided only to obtain leave from work
9 following voluntary abortions).
10 Other inconsistencies bolster the adverse credibility
11 determination. See Hong Fei Gao v. Sessions, 891 F.3d 67,
12 77 (2d Cir. 2018) (reiterating that “cumulative effect” of
13 even minor or ancillary inconsistencies can “be deemed
14 consequential” (quoting Xiu Xia Lin, 534 F.3d at 167)).
15 Although Yang testified that it was easy for her to get
16 pregnant, in her declaration she averred that she did not
17 want to terminate her pregnancy because “it was not easy for
18 [her] to get pregnant.” When asked to explain this
19 inconsistency, Yang denied writing the statement, but later
20 explained that the statement referred to the government’s
21 harsh treatment of her during her pregnancy. The IJ was not
22 required to accept these conflicting explanations and neither
4 1 explanation resolved the inconsistency. See Majidi v.
2 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
3 do more than offer a plausible explanation for his
4 inconsistent statements to secure relief; he must demonstrate
5 that a reasonable fact-finder would be compelled to credit
6 his testimony.” (internal quotation marks omitted)).
7 Implausible Testimony
8 The IJ also reasonably relied on the implausibility of
9 aspects of Yang’s testimony related to her pregnancy. See 8
10 U.S.C. § 1158(b)(1)(B)(iii). Yang testified that she
11 reported to family planning officials semiannually for an IUD
12 check, that her IUD was in place on October 3, 2009, her last
13 examination before her second pregnancy, and that her next
14 menstrual cycle ended on October 8. Yang’s December 2009
15 abortion certificate places her conception date at
16 approximately October 8. Yang testified that she confirmed
17 her pregnancy at a private clinic in November 2009, and that
18 her ultrasound revealed that the IUD had dislodged, but Yang
19 had no medical records to corroborate those facts. Given the
20 brief timeframe between confirmation of the IUD and Yang’s
21 pregnancy, and the lack of medical documentation of a
22 dislodged IUD, the IJ’s skepticism of the plausibility of
5 1 Yang’s account was reasonable. See Biao Yang v. Gonzales,
2
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17-1823 Yang v. Barr BIA Straus, IJ A205 435 091
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 28th day of May, two thousand nineteen. 5 6 PRESENT: 7 ROBERT D. SACK, 8 BARRINGTON D. PARKER, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 MINYING YANG, 14 Petitioner, 15 16 v. 17-1823 17 NAC 18 WILLIAM P. BARR, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: David J. Rodkin, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Douglas E. 27 Ginsburg, Assistant Director; John 28 M. McAdams, Jr., Attorney, Office 29 of 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 Minying Yang, a native and citizen of the
6 People’s Republic of China, seeks review of a May 10, 2017,
7 decision of the BIA affirming a December 7, 2015, decision of
8 an Immigration Judge (“IJ”) denying Yang’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Minying Yang, No.
11 A 205 435 091 (B.I.A. May 10, 2017), aff’g No. A 205 435 091
12 (Immig. Ct. Hartford Dec. 7, 2015). 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, i.e., minus the
17 IJ’s determination that Yang’s testimony conflicted with the
18 country conditions evidence. See Xue Hong Yang v. U.S. Dep’t
19 of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Accordingly,
20 the dispositive issue is whether the findings that the BIA
21 relied on provide substantial evidence for the adverse
22 credibility determination. Id.; see also 8 U.S.C.
2 1 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-
2 66 (2d Cir. 2008). In making a credibility determination,
3 the agency must “[c]onsider[] the totality of the
4 circumstances” and may base a finding on the applicant’s
5 “demeanor, candor, or responsiveness, . . . the inherent
6 plausibility of the applicant’s . . . account,”
7 inconsistencies in the applicant’s statements or between her
8 statements and other evidence, “without regard to whether an
9 inconsistency, inaccuracy, or falsehood goes to the heart of
10 the applicant’s claim, or any other relevant factor.” 8
11 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to [the
12 agency’s] credibility determination unless, from the totality
13 of the circumstances, it is plain that no reasonable fact-
14 finder could make such an adverse credibility ruling.” Xiu
15 Xia Lin, 534 F.3d at 167. We conclude that the adverse
16 credibility determination is supported by substantial
17 evidence.
18 Inconsistencies
19 Discrepancies among Yang’s testimony and her documentary
20 evidence called into question her credibility. For example,
21 Yang testified that after she had the abortion, she returned
22 to work the following Monday. The medical certificate,
3 1 however, indicates that she had the abortion on Friday,
2 December 25, 2009, and was excused from work through Friday,
3 January 9. And the medical certificate does not indicate
4 that the abortion was forced or involuntary. See Tu Lin v.
5 Gonzales, 446 F.3d 395, 400 (2d Cir. 2006) (upholding adverse
6 credibility determination based, in part, on fact that
7 country conditions evidence reflected that abortion
8 certificates were provided only to obtain leave from work
9 following voluntary abortions).
10 Other inconsistencies bolster the adverse credibility
11 determination. See Hong Fei Gao v. Sessions, 891 F.3d 67,
12 77 (2d Cir. 2018) (reiterating that “cumulative effect” of
13 even minor or ancillary inconsistencies can “be deemed
14 consequential” (quoting Xiu Xia Lin, 534 F.3d at 167)).
15 Although Yang testified that it was easy for her to get
16 pregnant, in her declaration she averred that she did not
17 want to terminate her pregnancy because “it was not easy for
18 [her] to get pregnant.” When asked to explain this
19 inconsistency, Yang denied writing the statement, but later
20 explained that the statement referred to the government’s
21 harsh treatment of her during her pregnancy. The IJ was not
22 required to accept these conflicting explanations and neither
4 1 explanation resolved the inconsistency. See Majidi v.
2 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
3 do more than offer a plausible explanation for his
4 inconsistent statements to secure relief; he must demonstrate
5 that a reasonable fact-finder would be compelled to credit
6 his testimony.” (internal quotation marks omitted)).
7 Implausible Testimony
8 The IJ also reasonably relied on the implausibility of
9 aspects of Yang’s testimony related to her pregnancy. See 8
10 U.S.C. § 1158(b)(1)(B)(iii). Yang testified that she
11 reported to family planning officials semiannually for an IUD
12 check, that her IUD was in place on October 3, 2009, her last
13 examination before her second pregnancy, and that her next
14 menstrual cycle ended on October 8. Yang’s December 2009
15 abortion certificate places her conception date at
16 approximately October 8. Yang testified that she confirmed
17 her pregnancy at a private clinic in November 2009, and that
18 her ultrasound revealed that the IUD had dislodged, but Yang
19 had no medical records to corroborate those facts. Given the
20 brief timeframe between confirmation of the IUD and Yang’s
21 pregnancy, and the lack of medical documentation of a
22 dislodged IUD, the IJ’s skepticism of the plausibility of
5 1 Yang’s account was reasonable. See Biao Yang v. Gonzales,
2 496 F.3d 268, 273 (2d Cir. 2007) (“[T]he absence of
3 corroboration in general makes an applicant unable to
4 rehabilitate testimony that has already been called into
5 question.”).
6 Vague Testimony
7 Finally, the adverse credibility determination is
8 strengthened by the IJ’s finding that Yang’s testimony about
9 her employment history was vague. Shunfu Li v. Mukasey, 529
10 F.3d 141, 147 (2d Cir. 2008) (explaining that vague testimony
11 can support an adverse credibility determination when the IJ
12 “attempts to solicit more detail from the alien”). Yang’s
13 application reflected that she was fired from an “important
14 position” as an accountant sometime after 2000, but found a
15 new accounting job in 2008. She testified that she was fired
16 from that new job because of her unauthorized pregnancy.
17 When the IJ asked Yang if she found another job, she
18 questioned whether he was referring to an “official” or “true”
19 job; when the IJ said “any job,” Yang responded, but without
20 elaboration, that she was hired for “short-term purpose” then
21 “discontinue[d]” after one or two months. When the IJ then
22 further inquired whether Yang had worked for a particular
6 1 company, Yang replied that she had, but still offered no
2 significant detail about her alleged sporadic employment over
3 the two years between her firing and her arrival in the United
4 States. See Shunfu Li, 529 F.3d at 147.
5 Taken together, the inconsistencies and implausible
6 testimony, all of which relate to her IUD, pregnancy,
7 abortion, and employment from the time of the abortion until
8 she came to the United States, provide substantial evidence
9 for the adverse credibility determination. See Hong Fei Gao,
10 891 F.3d at 77 (noting that agency may rely on “cumulative
11 effect” of minor discrepancies); Xiu Xia Lin, 534 F.3d at 165
12 (treating agency’s adverse credibility determinations as
13 “‘conclusive unless any reasonable adjudicator would be
14 compelled to conclude to the contrary.’” (quoting 8 U.S.C.
15 § 1252(b)(4)(B))). The adverse credibility determination is
16 dispositive of asylum, withholding of removal, and CAT relief
17 because all three claims are based on the same factual
18 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
19 Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of removal
22 that the Court previously granted in this petition is VACATED,
7 1 and any pending motion for a stay of removal in this petition
2 is DISMISSED as moot. Any pending request for oral argument
3 in this petition is DENIED in accordance with Federal Rule of
4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court