    18-473
    Ni v. Barr
                                                                                    BIA
                                                                          Christensen, IJ
                                                                          A206 583 038
                      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 30th day of June, two thousand twenty.

    PRESENT:
             DENNIS JACOBS,
             ROSEMARY S. POOLER,
             DENNY CHIN,
                  Circuit Judges.
    _____________________________________

    FANG NI,
                 Petitioner,

                 v.                                              18-473
                                                                 NAC

    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                   Louis H. Klein, The Kasen Law
                                      Firm, Flushing, NY.

    FOR RESPONDENT:                   Joseph H. Hunt, Assistant
                                      Attorney General; Sabatino F. Leo,
                                      Senior Litigation Counsel; Vanessa
                                      M. Otero, 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 Fang Ni, a native and citizen of the People’s

Republic of China, seeks review of a                  February 5, 2018,

decision of the BIA affirming a May 15, 2017, decision of an

Immigration Judge (“IJ”) denying her application for asylum,

withholding    of   removal,   and       relief   under    the   Convention

Against Torture (“CAT”).        In re Fang Ni, No. A206 583 038

(B.I.A. Feb. 5, 2018), aff’g No. A206 583 038 (Immig. Ct.

N.Y. City May 15, 2017).       We assume the parties’ familiarity

with the underlying facts and procedural history.

      Under the circumstances, we have considered both the IJ’s

and   the   BIA’s   opinions   “for      the   sake   of   completeness.”

Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528

(2d Cir. 2006).     The applicable standards of review are well

established.    See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.

Sessions, 891 F.3d 67, 76 (2d Cir. 2018).

      “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

                                     2
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 . . . ,

[and] the internal consistency of each such statement . . .

without regard to whether an inconsistency, inaccuracy, or

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

8 U.S.C.    § 1158(b)(1)(B)(iii);              see       also   Xiu    Xia     Lin   v.

Mukasey, 534 F.3d 162, 163–64 (2d Cir. 2008).                           Substantial

evidence supports the agency’s determination that Ni was not

credible    as   to    her    claim        that     Chinese     family        planning

officials had forced her to terminate pregnancies in 1992 and

1995.

       The agency reasonably relied in part on Ni’s demeanor,

noting that her answers were not responsive and that she began

shifting her answers when confronted with implausible or

inconsistent     aspects         of    her     testimony.             See     8 U.S.C.

§ 1158(b)(1)(B)(iii); see also Li Hua Lin v. U.S. Dep’t of

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

more    confident     in     our      review      of    observations         about   an

applicant’s demeanor where . . . they are supported by

specific examples of inconsistent testimony.”).                             The agency

also    reasonably     relied         on   Ni’s        inconsistent         statements

                                           3
regarding whether her friend informed her that officials had

discovered the 1995 pregnancy, whether she and her family

remained in contact with that friend, and how she injured her

arm when officials allegedly took her to have an abortion in

1995.   See 8 U.S.C. § 1158(b)(1)(B)(iii).        Nor did the agency

err in relying on the omission of Ni’s 1995 abortion from her

friend’s      corroborating       statement.           See      8 U.S.C.

§ 1158(b)(1)(B)(iii); see also Hong Fei Gao, 891 F.3d at 78

(“[T]he probative value of a witness’s . . . silence on

particular facts depends on whether those facts are ones the

witness would reasonably have been expected to disclose.”).

Ni   did    not    compelling     explain   any   of    these     record

inconsistencies.      See Majidi v. Gonzales, 430 F.3d 77, 80 (2d

Cir. 2005).

     Having       questioned     Ni’s   credibility,     the     agency

reasonably relied further on her failure to rehabilitate her

testimony     with    reliable    corroborating    evidence.        “An

applicant’s failure to corroborate his or her 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.”             Biao Yang v.

Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).                  The agency

                                    4
reasonably questioned the reliability of medical certificates

as evidence that Ni had undergone two forced abortions because

only one of the certificates stated that Ni had received an

abortion while the other stated that she had given birth to

a   male    baby    via   cesarean         section.         See   8 U.S.C.

§ 1158(b)(1)(B)(iii).         The agency also reasonably declined

to credit written statements from Ni’s friends because, as

discussed above, Wang failed to mention Ni’s alleged 1995

abortion,   and     neither     author    was   available     for    cross-

examination.    See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir.

2013) (“We generally defer to the agency’s evaluation of the

weight to be afforded an applicant’s documentary evidence.”);

see also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215

(B.I.A. 2010) (finding that letters from alien’s friends and

family were insufficient to provide substantial support for

alien’s claims because they were from interested witnesses

not subject to cross-examination), overruled on other grounds

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

2012).

    Given    the    demeanor,    inconsistency,       and   corroboration

findings, the agency’s adverse credibility determination is

supported      by    substantial         evidence.          See     8 U.S.C.

                                    5
§ 1158(b)(1)(B)(iii).   That determination was dispositive of

asylum, withholding of removal, and CAT relief because all

three claims were based on the same factual predicate.   See

Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED.

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




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