     17-460
     Ma v. Sessions
                                                                                  BIA
                                                                               Hom, IJ
                                                                          A202 042 405
                           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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 24th day of September, two thousand eighteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            DENNIS JACOBS,
 9            RICHARD C. WESLEY,
10                 Circuit Judges.
11   _____________________________________
12
13   HUILING MA,
14            Petitioner,
15
16                    v.                                         17-460
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Keith S. Barnett, New York, NY.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; Mary Jane
27                                    Candaux, Assistant Director;
28                                    Edward E. Wiggers, Senior
29                                    Litigation Counsel, Office of
30                                    Immigration Litigation, United
31                                    States Department of Justice,
32                                    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 Huiling Ma, a native and citizen of the

6    People’s Republic of China, seeks review of a January 27,

7    2017, decision of the BIA affirming a June 27, 2016, decision

8    of an Immigration Judge (“IJ”) denying Ma’s application for

9    asylum,   withholding   of   removal,   and   relief   under   the

10   Convention Against Torture (“CAT”).     In re Huiling Ma, No. A

11   202 042 405 (B.I.A. Jan. 27, 2017), aff’g No. A 202 042 405

12   (Immig. Ct. N.Y. City June 27, 2016).    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, reaching only the

17   adverse credibility ruling.    Xue Hong Yang v. U.S. Dep’t of

18   Justice, 426 F.3d 520, 522 (2d Cir. 2005).      We review

19   adverse credibility determinations under a substantial

20   evidence standard.   See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia

21   Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).        The

22

                                     2
1    governing REAL ID Act credibility standard provides as

2    follows:

 3
 4       Considering the totality of the circumstances, and
 5       all relevant factors, a trier of fact may base a
 6       credibility determination on . . . the consistency
 7       between the applicant’s or witness’s written and
 8       oral statements . . . the internal consistency of
 9       each such statement, the consistency of such
10       statements with other evidence of record . . . and
11       any inaccuracies or falsehoods in such statements,
12       without   regard  to   whether  an   inconsistency,
13       inaccuracy, or falsehood goes to the heart of the
14       applicant’s claim, or any other relevant factor.
15
16   8 U.S.C. § 1158(b)(1)(B)(iii).

17       “[A]n IJ may rely on any inconsistency or omission in

18   making an adverse credibility determination as long as the

19   ‘totality of the circumstances’ establishes that an asylum

20   applicant is not credible.”    Xiu Xia Lin, 534 F.3d at 167.

21   “We defer . . . to an IJ’s credibility determination unless

22   . . . it is plain that no reasonable fact-finder could make

23   such an adverse credibility ruling.”    Xiu Xia Lin, 534 F.3d

24   at 167.    “[A] material inconsistency in an aspect of [the

25   applicant]’s story that served as an example of the very

26   persecution from which [s]he sought asylum” can provide

27   substantial evidence for an adverse credibility ruling.

28   Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295

29
                                    3
1    (2d Cir. 2006) (quoting Majidi v. Gonzales, 430 F.3d 77, 81

2    (2d Cir. 2005)).

3        The agency reasonably concluded that Ma was not

4    credible because her application, asylum interview, and

5    testimony gave inconsistent accounts of her main allegation

6    of past persecution.   She gave two different versions of

7    how she escaped from the hospital when doctors were about

8    to perform a forced abortion.       At the June 13, 2016,

9    hearing before the IJ, she testified that when her husband

10   heard her screaming, he “rushed into the room, and he

11   pushed away the doctor.   So we ran out together.”

12   Certified Administrative Record 76.      However, in her

13   October 27, 2014, asylum interview, she claimed that she

14   told a doctor that “[w]e want to use the bathroom.        While

15   we used the bathroom we ran away stealthily.’”      96.     There

16   was no testimony about using the bathroom as an excuse to

17   accomplish an escape until she was confronted with her

18   previous asylum interview.

19       This inconsistency amounts to substantial evidence for

20   the adverse credibility ruling because it calls into

21   question Ma’s claim that she was targeted for a forced

22   abortion and undermines her credibility as a whole.         Xian

                                     4
1    Tuan Ye, 446 F.3d at 294-95; Majidi, 430 F.3d at 80; see

2    also Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)

3    (“[A] single false document or a single instance of false

4    testimony may (if attributable to the petitioner) infect

5    the balance of the alien’s uncorroborated or

6    unauthenticated evidence.”).

7        The agency was not required to accept Ma’s explanation

8    for the discrepancy because it did not explain why she

9    initially    described   her    escape       as    stealthy,    but   later

10   testified to screaming and pushing the doctors in order to

11   escape.     See Majidi, 430 F.3d at 80 (“A petitioner must do

12   more than offer a plausible explanation for his inconsistent

13   statements to secure relief; he must demonstrate that a

14   reasonable    fact-finder   would       be   compelled    to    credit   his

15   testimony.”     (internal      quotation          marks   and    citations

16   omitted)).

17       Nor did the agency err in relying on the record of the

18   asylum interview, which contained a “meaningful, clear, and

19   reliable summary of the statements made by [the applicant] at

20   the interview.”    Diallo v. Gonzales, 445 F.3d 624, 632 (2d

21   Cir. 2006) (citation and internal quotation marks omitted).

22   Ma has not challenged the reliability of the interview record,

                                         5
1    which reflects that Ma brought her own Mandarin interpreter

2    and understood the asylum officer’s questions.                              Ma also

3    argues,    that    the    record    was       not    formally      accepted       into

4    evidence and she was not given an opportunity to object or

5    cross    examine    the    asylum    officer.              These   arguments       are

6    without merit and unexhausted.                      The interview record was

7    admissible as impeachment evidence; Ma’s counsel did not

8    object when the Government introduced it; and Ma did not take

9    issue with its admission on appeal to the BIA.                      See Lin Zhong

10   v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007)

11   (requiring petitioners to exhaust issues before the BIA).

12   Accordingly,       the    agency    did       not    err    in    relying    on    the

13   inconsistency between the asylum interview and Ma’s hearing

14   testimony.

15       Because Ma’s claims were all based on the same factual

16   predicate, the adverse credibility determination is

17   dispositive of asylum, withholding of removal, and CAT

18   relief.    Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

19   2006).

20       For the foregoing reasons, the petition for review is

21   DENIED.      Any pending request for oral argument in this

22   petition    is    DENIED     in    accordance         with       Federal    Rule    of

                                               6
1   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2   34.1(b).

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe,
5                              Clerk of Court




                                 7
