18-3000 Yang v. Barr BIA Hom, IJ A206 570 476
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 18th day of August, two thousand twenty. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 RICHARD J. SULLIVAN, 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 JIE YANG, 15 Petitioner, 16 17 v. 18-3000 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Dehai Zhang, Flushing, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Claire L. 28 Workman, Senior Litigation 29 Counsel; Rosanne M. Perry, Trial 30 Attorney, Office of Immigration 31 Litigation, United States 1 Department of Justice, Washington, 2 DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Jie Yang, a native and citizen of the People’s
9 Republic of China, seeks review of a September 28, 2018
10 decision of the BIA affirming an October 2, 2017 decision of
11 an Immigration Judge (“IJ”) denying Yang’s application for
12 asylum, withholding of removal, and relief under the
13 Convention Against Torture (“CAT”). In re Jie Yang, No. A206
14 570 476 (B.I.A. Sep. 28, 2018), aff’g No. A206 570 476 (Immig.
15 Ct. N.Y.C. Oct. 2, 2017). We assume the parties’ familiarity
16 with the underlying facts and procedural history.
17 Under the circumstances of this case, we have reviewed
18 the decision of the IJ as supplemented by the BIA. See Yan
19 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). “We
20 review the agency’s factual findings, including adverse
21 credibility findings, under the substantial evidence
22 standard, which requires that they be supported by
23 reasonable, substantial[,] and probative evidence in the
24 record when considered as a whole.” Hong Fei Gao v. Sessions,
2 1 891 F.3d 67, 76 (2d Cir. 2018) (internal quotation marks
2 omitted). And we review the agency’s rulings establishing
3 and enforcing filing deadlines for abuse of discretion. See
4 Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008).
5 Adverse Credibility Determination
6 “Considering the totality of the circumstances, and all
7 relevant factors, a trier of fact may base a credibility
8 determination on . . . the consistency between the applicant’s
9 or witness’s written and oral statements . . . [and] the
10 internal consistency of each such statement . . . without
11 regard to whether an inconsistency, inaccuracy, or falsehood
12 goes to the heart of the applicant’s claim . . . .” 8 U.S.C.
13 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
14 determination unless, from the totality of the circumstances,
15 it is plain that no reasonable fact-finder could make such an
16 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
17 F.3d 162, 167 (2d Cir. 2008); Hong Fei Gao, 891 F.3d at 76.
18 Substantial evidence supports the agency’s determination that
19 Yang was not credible as to her claim that family planning
20 officials forced her to terminate a pregnancy under China’s
21 family planning policy.
22 The agency reasonably relied on a series of
3 1 inconsistencies between Yang’s testimony and other evidence.
2 See 8 U.S.C. § 1158(b)(1)(B)(iii). Yang asserted in her
3 written statement that, after family planning officials
4 pressured her with social security and educational
5 restrictions, she “hopelessly” went to the hospital to obtain
6 an abortion. Certified Admin. Rec. at 177. That statement
7 was inconsistent with her later testimony that family
8 planning officials physically forced her from her home after
9 an altercation and took her to the hospital to have an
10 abortion. Additionally, Yang’s statement and testimony that
11 she had been pregnant twice and forced to have one abortion
12 was inconsistent with her medical records, which stated that
13 Yang had been pregnant five times, had given birth once, and
14 had three abortions. The agency also did not err in relying
15 on Yang’s failure to mention in her written statement that
16 her husband was at their home when the family planning
17 officials forcibly removed her, that he had engaged in a
18 physical altercation with the officials while pleading with
19 them not to take her, and that he accompanied her to the
20 hospital. See Hong Fei Gao, 891 F.3d at 78–79 (“[I]n
21 assessing the probative value of the omission of certain
22 facts, an IJ should consider whether those facts are ones
4 1 that a credible petitioner would reasonably have been
2 expected to disclose under the relevant circumstances.”).
3 Yang could not compellingly explain these inconsistencies and
4 omissions. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
5 2005) (“A petitioner must do more than offer a plausible
6 explanation for h[er] inconsistent statements to secure
7 relief; [s]he must demonstrate that a reasonable fact-finder
8 would be compelled to credit h[er] testimony.” (internal
9 quotation marks omitted)); see also Likai Gao v. Barr, No. 18-
10 358, 2020 WL 4290009, at *4 n.8 (2d Cir. July 28, 2020)
11 (“[E]ven a single inconsistency might preclude an alien from
12 showing that an IJ was compelled to find h[er] credible.
13 Multiple inconsistencies would so preclude even more
14 forcefully.”).
15 Having questioned her credibility, the IJ reasonably
16 relied on Yang’s failure to rehabilitate her testimony with
17 reliable corroborating evidence. See Biao Yang v. Gonzales,
18 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to
19 corroborate his or her testimony may bear on credibility,
20 because the absence of corroboration in general makes an
21 applicant unable to rehabilitate testimony that has already
22 been called into question.”). As the IJ concluded, Yang
5 1 failed to timely submit any evidence corroborating her claim
2 that she was forced to undergo an abortion.
3 Given the inconsistency and lack of corroboration
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18-3000 Yang v. Barr BIA Hom, IJ A206 570 476
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 18th day of August, two thousand twenty. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 RICHARD J. SULLIVAN, 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 JIE YANG, 15 Petitioner, 16 17 v. 18-3000 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Dehai Zhang, Flushing, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Claire L. 28 Workman, Senior Litigation 29 Counsel; Rosanne M. Perry, Trial 30 Attorney, Office of Immigration 31 Litigation, United States 1 Department of Justice, Washington, 2 DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Jie Yang, a native and citizen of the People’s
9 Republic of China, seeks review of a September 28, 2018
10 decision of the BIA affirming an October 2, 2017 decision of
11 an Immigration Judge (“IJ”) denying Yang’s application for
12 asylum, withholding of removal, and relief under the
13 Convention Against Torture (“CAT”). In re Jie Yang, No. A206
14 570 476 (B.I.A. Sep. 28, 2018), aff’g No. A206 570 476 (Immig.
15 Ct. N.Y.C. Oct. 2, 2017). We assume the parties’ familiarity
16 with the underlying facts and procedural history.
17 Under the circumstances of this case, we have reviewed
18 the decision of the IJ as supplemented by the BIA. See Yan
19 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). “We
20 review the agency’s factual findings, including adverse
21 credibility findings, under the substantial evidence
22 standard, which requires that they be supported by
23 reasonable, substantial[,] and probative evidence in the
24 record when considered as a whole.” Hong Fei Gao v. Sessions,
2 1 891 F.3d 67, 76 (2d Cir. 2018) (internal quotation marks
2 omitted). And we review the agency’s rulings establishing
3 and enforcing filing deadlines for abuse of discretion. See
4 Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008).
5 Adverse Credibility Determination
6 “Considering the totality of the circumstances, and all
7 relevant factors, a trier of fact may base a credibility
8 determination on . . . the consistency between the applicant’s
9 or witness’s written and oral statements . . . [and] the
10 internal consistency of each such statement . . . without
11 regard to whether an inconsistency, inaccuracy, or falsehood
12 goes to the heart of the applicant’s claim . . . .” 8 U.S.C.
13 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
14 determination unless, from the totality of the circumstances,
15 it is plain that no reasonable fact-finder could make such an
16 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
17 F.3d 162, 167 (2d Cir. 2008); Hong Fei Gao, 891 F.3d at 76.
18 Substantial evidence supports the agency’s determination that
19 Yang was not credible as to her claim that family planning
20 officials forced her to terminate a pregnancy under China’s
21 family planning policy.
22 The agency reasonably relied on a series of
3 1 inconsistencies between Yang’s testimony and other evidence.
2 See 8 U.S.C. § 1158(b)(1)(B)(iii). Yang asserted in her
3 written statement that, after family planning officials
4 pressured her with social security and educational
5 restrictions, she “hopelessly” went to the hospital to obtain
6 an abortion. Certified Admin. Rec. at 177. That statement
7 was inconsistent with her later testimony that family
8 planning officials physically forced her from her home after
9 an altercation and took her to the hospital to have an
10 abortion. Additionally, Yang’s statement and testimony that
11 she had been pregnant twice and forced to have one abortion
12 was inconsistent with her medical records, which stated that
13 Yang had been pregnant five times, had given birth once, and
14 had three abortions. The agency also did not err in relying
15 on Yang’s failure to mention in her written statement that
16 her husband was at their home when the family planning
17 officials forcibly removed her, that he had engaged in a
18 physical altercation with the officials while pleading with
19 them not to take her, and that he accompanied her to the
20 hospital. See Hong Fei Gao, 891 F.3d at 78–79 (“[I]n
21 assessing the probative value of the omission of certain
22 facts, an IJ should consider whether those facts are ones
4 1 that a credible petitioner would reasonably have been
2 expected to disclose under the relevant circumstances.”).
3 Yang could not compellingly explain these inconsistencies and
4 omissions. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
5 2005) (“A petitioner must do more than offer a plausible
6 explanation for h[er] inconsistent statements to secure
7 relief; [s]he must demonstrate that a reasonable fact-finder
8 would be compelled to credit h[er] testimony.” (internal
9 quotation marks omitted)); see also Likai Gao v. Barr, No. 18-
10 358, 2020 WL 4290009, at *4 n.8 (2d Cir. July 28, 2020)
11 (“[E]ven a single inconsistency might preclude an alien from
12 showing that an IJ was compelled to find h[er] credible.
13 Multiple inconsistencies would so preclude even more
14 forcefully.”).
15 Having questioned her credibility, the IJ reasonably
16 relied on Yang’s failure to rehabilitate her testimony with
17 reliable corroborating evidence. See Biao Yang v. Gonzales,
18 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to
19 corroborate his or her testimony may bear on credibility,
20 because the absence of corroboration in general makes an
21 applicant unable to rehabilitate testimony that has already
22 been called into question.”). As the IJ concluded, Yang
5 1 failed to timely submit any evidence corroborating her claim
2 that she was forced to undergo an abortion.
3 Given the inconsistency and lack of corroboration
4 findings, the adverse credibility determination is supported
5 by substantial evidence. See Xiu Xia Lin, 534 F.3d at 165–
6 66. That determination is dispositive of asylum, withholding
7 of removal, and CAT relief because all three claims are based
8 on the same factual predicate. See Paul v. Gonzales, 444
9 F.3d 148, 156–57 (2d Cir. 2006).
10 Late-Filed Evidence
11 The IJ did not abuse his discretion or prejudice Yang by
12 declining to admit her late-filed evidence. “[A]n IJ has
13 broad discretion to set and extend filing deadlines,” Dedji,
14 525 F.3d at 191, and when “an application or document is not
15 filed within the time set by the [IJ], the opportunity to
16 file that application or document shall be deemed waived,”
17 8 C.F.R. § 1003.31(c). An IJ abuses his discretion in
18 setting and enforcing deadlines for the submission of
19 evidence “when ‘(1) his decision rests on an error of law .
20 . . or a clearly erroneous factual finding or (2) his
21 decision—though not necessarily the product of a legal error
22 or a clearly erroneous factual finding—cannot be located
6 1 within the range of permissible decisions.’” Dedji 525 F.3d
2 at 191–92 (quoting Morgan v. Gonzales, 445 F.3d 549, 551–52
3 (2d Cir. 2006)).
4 The IJ gave Yang more than two years and eight months to
5 procure and submit supporting documentation. Indeed, the IJ
6 gave Yang proper notice of the submission deadline at a July
7 2014 hearing at which Yang was present and represented by
8 counsel. Additionally, the late-filed evidence was available
9 or obtainable prior to the deadline and thus could have been
10 timely filed. Contrary to Yang’s argument, the IJ considered
11 whether her substitution of counsel was good cause for the
12 delay in submitting her documents and reasonably declined to
13 find good cause because she had more than two years to submit
14 evidence before the deadline and her subsequent substitution
15 of counsel. The IJ further reasonably explained that the
16 deadlines were required to manage the increasing caseload and
17 large volume of document submissions in Immigration Court in
18 an efficient and equitable manner. Accordingly, we find no
19 abuse of discretion in the IJ’s decision declining to admit
20 Yang’s late-filed evidence.
21 Nor was Yang prejudiced by the IJ’s refusal to admit the
22 late-filed documents. Cf. Dedji, 525 F.3d at 192–93 (finding
7 1 prejudice where the inconsistencies “could have been resolved
2 in [petitioner’s] favor” had the evidence been admitted). As
3 the IJ found, this evidence either did not address the record
4 inconsistencies or created new inconsistencies that would
5 have further impugned Yang’s credibility. 1 Accordingly, Yang
6 was not prejudiced by the IJ’s refusal to admit the documents.
7 For the foregoing reasons, the petition for review is
8 DENIED. All pending motions and applications are DENIED and
9 stays VACATED.
10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court
1 We note that the IJ admitted Yang’s medical records into evidence, despite their untimely submission, because of the “considerable testimony and references made by the parties to the document.” Certified Admin. Rec. at 51. These records form the basis of the inconsistency noted above regarding the number of times that Yang had been pregnant. 8