     16-4167
     Rao v. Sessions
                                                                                   BIA
                                                                            Vomacka, IJ
                                                                           A200 181 152
                            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 20th day of February, two thousand
 5   eighteen.
 6
 7   PRESENT: DENNIS JACOBS,
 8            PETER W. HALL,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   AI HUA RAO,
14            Petitioner,
15
16                     v.                                        16-4167
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Dehai Zhang, Flushing, NY.
24
25   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
26                                     Attorney General; Briena L.
27                                     Strippoli, Senior Litigation
28                                     Counsel; Karen L. Melnik, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, United States
31                                     Department of Justice, Washington,
32                                     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 Ai Hua Rao, a native and citizen of the

6    People’s Republic of China, seeks review of a November 28,

7    2016, decision of the BIA affirming a January 13, 2016,

8    decision of an Immigration Judge (“IJ”) denying Rao’s

9    application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).   In re Ai Hua

11   Rao, No. A200 181 152 (B.I.A. Nov. 28, 2016), aff’g No.

12   A200 181 152 (Immig. Ct. N.Y. City Jan. 13, 2016).   We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and the BIA’s opinions “for the sake of

17   completeness.”   Wangchuck v. Dep’t of Homeland Security,

18   448 F.3d 524, 528 (2d Cir. 2006).   The applicable standards

19   of review are well established.   8 U.S.C. § 1252(b)(4)(B);

20   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.

21   2008).   “Considering the totality of the circumstances, and

22   all relevant factors, a trier of fact may base a


                                   2
1    credibility determination on the demeanor, candor, or

2    responsiveness of the applicant or witness, . . . the

3    consistency between the applicant’s or witness’s written

4    and oral statements . . . , the internal consistency of

5    each such statement, [and] the consistency of such

6    statements with other evidence of record . . . without

7    regard to whether an inconsistency, inaccuracy, or

8    falsehood goes to the heart of the applicant’s claim.”

9    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at

10   163-64.   Substantial evidence supports the agency’s

11   determination that Rao was not credible as to her claim

12   that Chinese family planning officials terminated a

13   pregnancy and ordered her to be sterilized under China’s

14   family planning policy.

15       The agency reasonably relied on Rao’s demeanor and

16   inconsistent testimony to find her not credible.     See

17   8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales,

18   430 F.3d 77, 81 n.1 (2d Cir. 2005) (providing that

19   particular weight is given to the trier of fact’s

20   assessment of demeanor); Li Hua Lin v. U.S. Dep’t of

21   Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still

22   more confident in our review of observations about an


                                   3
1    applicant’s demeanor where, as here, they are supported by

2    specific examples of inconsistent testimony.”).    As the IJ

3    found, Rao gave the impression that she was testifying from

4    a memorized script because her testimony was clear,

5    concise, and consistent on direct examination, but became

6    unresponsive, confused, and inconsistent (internally and

7    with other evidence) on cross-examination regarding the

8    following: how many times family planning officials took

9    her by force to undergo family planning procedures; whether

10   and when her husband’s and mother-in-law’s houses were

11   demolished; and how family planning officials discovered

12   that she was living in the United States.     See 8 U.S.C.

13   § 1158(b)(1)(B)(iii); see also Li Hua Lin, 453 F.3d at 109.

14   Rao did not compellingly explain the record

15   inconsistencies.    See Majidi, 430 F.3d at 80.

16       Having questioned Rao’s credibility, the agency

17   reasonably relied further on her failure to submit

18   corroborating evidence sufficient to rehabilitate her

19   testimony.   See Biao Yang v. Gonzales, 496 F.3d 268, 273

20   (2d Cir. 2007).    The IJ reasonably gave little weight to an

21   unsworn letter from Rao’s husband because he was an

22   interested witness who was not subject to cross-examination


                                    4
1    and because he had relied on Rao’s written statement to

2    write his letter.   See Y.C. v. Holder, 741 F.3d 324, 334

3    (2d Cir. 2013); see also Mei Chai Ye v. U.S. Dep’t of

4    Justice, 489 F.3d 517, 524 (2d Cir. 2007).   Similarly, the

5    agency reasonably afforded limited weight to Rao’s

6    brother’s affidavit and testimony given that he was an

7    interested witness and he did not have firsthand knowledge

8    of Rao’s persecution claim or entry into the United States.

9    See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

10   342 (2d Cir. 2006) (providing that a determination of the

11   weight of evidence is largely a matter of agency

12   discretion).   The agency also reasonably declined to credit

13   a village committee notice, which stated that Rao and her

14   husband are “targets for sterilization,” because the notice

15   does not identify the author and is handwritten on

16   letterhead without a signature, and because correspondence

17   from the Fujian Province Population and Family Planning

18   Commission appended to the 2007 State Department Profile of

19   Asylum Claims and Country Conditions states that village

20   committees do not have the authority to issue such notices.

21   Id.; see also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209,

22   214-15 (BIA 2010) (according little weight to a


                                   5
1    sterilization notice based on the family planning letter

2    appended to the 2007 Profile), overruled on other grounds

3    by Hui Lin Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir.

4    2012).

5        Given the demeanor, inconsistency, and lack of

6    corroboration findings, the agency’s adverse credibility

7    determination is supported by substantial evidence.

8    8 U.S.C. § 1158(b)(1)(B)(iii).     That determination is

9    dispositive of Rao’s claims for asylum, withholding of

10   removal, and CAT relief because all three claims are based

11   on the same factual predicate.     See Paul v. Gonzales, 444

12   F.3d 148, 156-57 (2d Cir. 2006).

13       For the foregoing reasons, the petition for review is

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

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

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

17   is DISMISSED as moot.    Any pending request for oral argument

18   in this petition is DENIED in accordance with Federal Rule of

19   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

20   34.1(b).

21                       FOR THE COURT:
22                       Catherine O’Hagan Wolfe, Clerk of Court



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