     15-1303
     Wu v. Lynch
                                                                                        BIA
                                                                                   Nelson, IJ
                                                                            A205 036 149/150
                        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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   3rd day of October, two thousand sixteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DENNY CHIN,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   JIAO WU, MING LI, AKA LI MING,
14            Petitioners,
15
16                 v.                                                15-1303
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONERS:                    Robert J. Adinolfi, New York, New
24                                       York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Melissa
28                                       Neiman-Kelting, Senior Litigation
29                                       Counsel; Allison Frayer, Trial
30                                       Attorney, Office of Immigration
31                                       Litigation, United States
32                                       Department of Justice, Washington,
33                                       D.C.
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 is

4    DENIED.

5        Petitioners Jiao Wu and Ming Li, natives and citizens of

6    the People’s Republic of China, seek review of an April 8, 2015,

7    decision of the BIA affirming an October 18, 2012, decision of

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

9    asylum, withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).   In re Jiao Wu, Ming Li, Nos. A205 036

11   149/150 (B.I.A. Apr. 8, 2015), aff’g Nos. A205 035 149/150

12   (Immigr. Ct. N.Y.C. Oct. 18, 2012).     We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       We have reviewed both the IJ’s and the BIA’s opinions “for

16   the sake of completeness.”     Wangchuck v. Dep’t of Homeland

17   Sec., 448 F.3d 524, 528 (2d Cir. 2006).         The applicable

18   standards of review are well established.         See 8 U.S.C.

19   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

20   (2d Cir. 2008).   For asylum applications like these, governed

21   by the REAL ID Act, the agency may, “[c]onsidering the totality

22   of the circumstances . . . base a credibility determination on

23   the demeanor, candor, or responsiveness of the applicant or

24   witness, the inherent plausibility of the applicant’s or
                                    2
1    witness’s account,” and inconsistencies in an applicant’s

2    statements   and   other   record       evidence   “without   regard   to

3    whether” they go “to the heart of the applicant’s claim.”

4    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

5        Although two of the IJ’s findings are unsupported by the

6    record, we conclude that remand would be futile because the

7    remainder    of   the   findings    are    supported   and    constitute

8    substantial evidence supporting the IJ’s adverse credibility

9    determination.     Accordingly, we deny the petition for review.

10       Two of the IJ’s findings do not support the adverse

11   credibility determination.         First, although Wu testified that

12   her 2011 pregnancy was both planned and unplanned, the IJ did

13   not rely on that inconsistency.            Instead, the IJ found an

14   inconsistency between Wu’s statement that the 2011 pregnancy

15   was accidental and Li’s written statement that they had

16   discussed having a second child many times.                  There is no

17   inconsistency: a couple can want a child without actively

18   planning a pregnancy.      Second, the IJ’s finding that it was

19   implausible that Wu would not have sought permission to have

20   a second child, considering her testimony that a second child

21   was allowed under the family planning policy, relied on the

22   erroneous inconsistency finding.

23       The IJ’s remaining findings, however, provide substantial

24   evidence for the adverse credibility determination.               The IJ
                                         3
1    relied on two additional inconsistencies with firm support in

2    the record.   See Xiu Xia Lin, 534 F.3d at 163-64.     Wu’s medical

3    records reflected that she requested an abortion in 2011, but

4    she testified it was involuntary.     Although Wu testified that

5    the medical records were mistaken, she did not explain how or

6    why the hospital would have interpreted a forced abortion as

7    voluntary, or why she submitted records that undermined her

8    claim without explaining the discrepancy up front.          Majidi v.

9    Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).    This inconsistency,

10   standing   alone,   is   sufficient   to   support    the    adverse

11   credibility determination because it relates to the basis of

12   Wu’s claim.   Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d

13   289, 294-95 (2d Cir. 2006).

14       Wu also testified that the government imposed a 10,000

15   renminbi fine, which officials sought to collect monthly, but

16   Li stated that officials tried to collect the fine once and then

17   forgot about it.    Wu argues that the she should have been given

18   an opportunity to explain this inconsistency.        She was.   Wu’s

19   attorney declined the IJ’s invitation to offer additional

20   evidence after Li testified.    Moreover, the inconsistency was

21   conspicuous and called into question whether Wu and Li were ever

22   fined for violating family planning laws, thereby casting doubt

23   on the entirety of Wu’s claim of persecution.    See Ming Shi Xue

24   v. BIA, 439 F.3d 111, 114 (2d Cir. 2006).
                                     4
 1        The adverse credibility determination is further supported

 2   by the lack of reliable corroborating evidence.         Biao Yang v.

 3   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).              First, Li’s

 4   testimony and unpersuasive demeanor did not rehabilitate Wu.

 5   He   gave   inconsistent   testimony     regarding   the    fine   and

 6   frequently looked toward Wu before answering questions.            See

 7   Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.

 8   2005) (holding that we generally defer to IJ’s demeanor

 9   findings).    In addition, Wu’s medical records of her 2011

10   abortion undermined her claim, and she failed to produce records

11   of the 2007 abortion, which she alleged occurred at the same

12   hospital.

13        In spite of the two errors relating to whether the 2011

14   pregnancy was planned, we conclude that remand is futile.          Cao

15   He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d Cir. 2005).

16   The inconsistency between Wu’s testimony and medical records

17   regarding her 2011 abortion is sufficient, standing alone, to

18   support the adverse credibility determination.          Xian Tuan Ye,

19   446 F.3d at 294-95.   The adverse credibility finding is further

20   supported by the inconsistency regarding the fine, as well as

21   Wu’s failure to corroborate her claim with reliable evidence.

22   Accordingly, the “totality of the circumstances” supports the

23   adverse credibility determination.       See Xiu Xia Lin, 534 F.3d

24   at   167.    That   determination   is    dispositive      of   asylum,
                                     5
1   withholding of removal, and CAT relief because all three forms

2   of relief relied on the same factual predicate.   See Paul v.

3   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

4       For the foregoing reasons, the petition for review is

5   DENIED.

6                               FOR THE COURT:
7                               Catherine O=Hagan Wolfe, Clerk




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