17-240 Yao v. Sessions BIA Loprest, IJ A205 894 881 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 October, two thousand eighteen.
PRESENT: BARRINGTON D. PARKER, DEBRA ANN LIVINGSTON, GERARD E. LYNCH, Circuit Judges. _____________________________________
YONGBO YAO, AKA YONG BO YAO, Petitioner,
v. 17-240 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Gary J. Yerman, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Derek C. Julius, Assistant Director; Enitan Omotayo Otunla, Trial Attorney, Office 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 Yongbo Yao, a native and citizen of the
People’s Republic of China, seeks review of a December 28,
2016, decision of the BIA affirming an October 2, 2015,
decision of an Immigration Judge (“IJ”) denying Yao’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Yongbo
Yao, No. A 205 894 881 (B.I.A. Dec. 28, 2016), aff’g No. A 205
894 881 (Immig. Ct. N.Y. City Oct. 2, 2015). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA and reach only the
adverse credibility ruling. See Xue Hong Yang v. U.S. Dep’t
of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The standards
of review are well established. See 8 U.S.C.
2 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-
66 (2d Cir. 2008). The standard for assessing credibility
is set forth in the REAL ID Act, which provides as follows:
Considering the totality of the circumstances, and all 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, the consistency of such statements with other evidence of record . . . and any inaccuracies or falsehoods in such statements, 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). “[A]lthough IJs may rely
on non-material omissions and inconsistencies, . . . [a]
trivial inconsistency or omission that has no tendency to
suggest a petitioner fabricated his or her claim will not
support an adverse credibility determination.” Hong Fei Gao
v. Sessions, 891 F.3d 67, 77 (2d Cir. 2018). “We defer
. . . to an IJ’s credibility determination unless . . . it is
plain that no reasonable fact-finder could make such an
adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
The adverse credibility determination is supported by
substantial evidence. 3 The agency reasonably relied on discrepancies between
Yao’s testimony and his written statement. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). Yao testified to two visits from
neighborhood family planning officials and one visit from the
city family planning officials, but his written statement
described only a single visit from the neighborhood
officials. The agency was not required to credit Yao’s
position that his written statement implied a separate visit
from the city officials because the statement does not
actually identify such a visit. See Majidi v. Gonzales, 430
F.3d 77, 80 (2d Cir. 2005) (“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.”
(quotation marks omitted) (quoting Zhang v. INS, 386 F.3d 66,
76 (2d Cir. 2004)); see also Siewe v. Gonzales, 480 F.3d 160,
167 (2d Cir. 2007) (“Where there are two permissible views of
the evidence, the factfinder’s choice between them cannot be
clearly erroneous.” (quoting Anderson v. Bessemer City, 470
U.S. 564, 574 (1985))). In addition, while Yao’s written
statement alleged that his wife was sterilized after an 4 abortion, he testified only that she was forced to have an
intrauterine device (“IUD”) after the abortion. The agency
reasonably rejected Yao’s explanation that he did not know
the difference between an IUD and sterilization because his
written statement distinguished between them. See Majidi,
430 F.3d at 80.
Yao also conceded that he provided false employment
information to U.S. officials when obtaining his visa and
that he repeated the false information to the attorneys
preparing his asylum application. While we have acknowledged
that an alien’s false statements “to escape immediate danger
or imminent prosecution” should not support an adverse
credibility ruling, that exception does not apply here
because Yao did not leave China until over a decade after his
wife’s abortion (with no intervening harm) and because he
then repeated the false information on his asylum application
after he was safely in the United States. See Rui Ying Lin
v. Gonzales, 445 F.3d 127, 133 (2d Cir. 2006); see also Siewe,
480 F.3d at 170-71.
The IJ’s negative demeanor finding, which was based in
part on Yao’s lack of candor and responsiveness regarding his 5 employment history, further supports the adverse credibility
ruling. 8 U.S.C. § 1158(b)(1)(B)(iii); Jin Chen v. U.S.
Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005) (giving
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17-240 Yao v. Sessions BIA Loprest, IJ A205 894 881 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 October, two thousand eighteen.
PRESENT: BARRINGTON D. PARKER, DEBRA ANN LIVINGSTON, GERARD E. LYNCH, Circuit Judges. _____________________________________
YONGBO YAO, AKA YONG BO YAO, Petitioner,
v. 17-240 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Gary J. Yerman, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Derek C. Julius, Assistant Director; Enitan Omotayo Otunla, Trial Attorney, Office 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 Yongbo Yao, a native and citizen of the
People’s Republic of China, seeks review of a December 28,
2016, decision of the BIA affirming an October 2, 2015,
decision of an Immigration Judge (“IJ”) denying Yao’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Yongbo
Yao, No. A 205 894 881 (B.I.A. Dec. 28, 2016), aff’g No. A 205
894 881 (Immig. Ct. N.Y. City Oct. 2, 2015). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA and reach only the
adverse credibility ruling. See Xue Hong Yang v. U.S. Dep’t
of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The standards
of review are well established. See 8 U.S.C.
2 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-
66 (2d Cir. 2008). The standard for assessing credibility
is set forth in the REAL ID Act, which provides as follows:
Considering the totality of the circumstances, and all 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, the consistency of such statements with other evidence of record . . . and any inaccuracies or falsehoods in such statements, 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). “[A]lthough IJs may rely
on non-material omissions and inconsistencies, . . . [a]
trivial inconsistency or omission that has no tendency to
suggest a petitioner fabricated his or her claim will not
support an adverse credibility determination.” Hong Fei Gao
v. Sessions, 891 F.3d 67, 77 (2d Cir. 2018). “We defer
. . . to an IJ’s credibility determination unless . . . it is
plain that no reasonable fact-finder could make such an
adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
The adverse credibility determination is supported by
substantial evidence. 3 The agency reasonably relied on discrepancies between
Yao’s testimony and his written statement. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). Yao testified to two visits from
neighborhood family planning officials and one visit from the
city family planning officials, but his written statement
described only a single visit from the neighborhood
officials. The agency was not required to credit Yao’s
position that his written statement implied a separate visit
from the city officials because the statement does not
actually identify such a visit. See Majidi v. Gonzales, 430
F.3d 77, 80 (2d Cir. 2005) (“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.”
(quotation marks omitted) (quoting Zhang v. INS, 386 F.3d 66,
76 (2d Cir. 2004)); see also Siewe v. Gonzales, 480 F.3d 160,
167 (2d Cir. 2007) (“Where there are two permissible views of
the evidence, the factfinder’s choice between them cannot be
clearly erroneous.” (quoting Anderson v. Bessemer City, 470
U.S. 564, 574 (1985))). In addition, while Yao’s written
statement alleged that his wife was sterilized after an 4 abortion, he testified only that she was forced to have an
intrauterine device (“IUD”) after the abortion. The agency
reasonably rejected Yao’s explanation that he did not know
the difference between an IUD and sterilization because his
written statement distinguished between them. See Majidi,
430 F.3d at 80.
Yao also conceded that he provided false employment
information to U.S. officials when obtaining his visa and
that he repeated the false information to the attorneys
preparing his asylum application. While we have acknowledged
that an alien’s false statements “to escape immediate danger
or imminent prosecution” should not support an adverse
credibility ruling, that exception does not apply here
because Yao did not leave China until over a decade after his
wife’s abortion (with no intervening harm) and because he
then repeated the false information on his asylum application
after he was safely in the United States. See Rui Ying Lin
v. Gonzales, 445 F.3d 127, 133 (2d Cir. 2006); see also Siewe,
480 F.3d at 170-71.
The IJ’s negative demeanor finding, which was based in
part on Yao’s lack of candor and responsiveness regarding his 5 employment history, further supports the adverse credibility
ruling. 8 U.S.C. § 1158(b)(1)(B)(iii); Jin Chen v. U.S.
Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005) (giving
“particular deference” to credibility findings based on an
applicant’s demeanor).
Finally, the agency also reasonably concluded that Yao’s
corroborating evidence did not rehabilitate his testimony.
See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
(“An applicant’s failure to corroborate . . . 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.”). The IJ
reasonably gave little weight to the unsworn letters from
China. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013).
Moreover, the letters were short and lacked detail, and Yao’s
wife’s letter did not confirm the alleged abortion. See Xiu
Xia Lin, 534 F.3d at 166-67 (upholding agency’s reliance on
omissions in letters submitted to corroborate claim).
The above discrepancies and lack of reliable
corroboration provide substantial evidence for the adverse
credibility ruling. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu 6 Xia Lin, 534 F.3d at 166-67. Because Yao’s claims were all
based on the same factual predicate, the adverse credibility
determination is dispositive of asylum, withholding of
removal, and CAT relief. Paul v. Gonzales, 444 F.3d 148,
156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, Yao’s pending
motion for a stay of removal in this petition is DISMISSED as
moot.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court