     16-2271
     Ding v. Sessions
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A205 625 655
                             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   21st day of November, two thousand seventeen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            GERARD E. LYNCH,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   FENGRONG DING,
14            Petitioner,
15
16                      v.                                           16-2271
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Robert J. Adinolfi, New York, NY.
24
25   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
26                                       Attorney General; Derek C. Julius,
27                                       Assistant Director; Bernard A.
28                                       Joseph, Senior Litigation Counsel,
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       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 is

4    DENIED.

5        Petitioner Fengrong Ding, a native and citizen of the

6    People’s Republic of China, seeks review of a June 10, 2016

7    decision of the BIA affirming a July 7, 2015 decision of an

8    Immigration Judge (“IJ”) denying Ding’s application for asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).   In re Fengrong Ding, No. A 205 625 655 (B.I.A.

11   June 10, 2016), aff’g No. A 205 625 655 (Immig. Ct. N.Y.C. July

12   7, 2015).    We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       We have reviewed both the BIA and IJ’s decisions.         See

15   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).   The

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

17   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

18   (2d Cir. 2008).

19       The agency may, “[c]onsidering the totality of the

20   circumstances,” base an adverse credibility determination on

21   inconsistencies or omissions in an applicant’s oral and written

22   statements and other record evidence.     8 U.S.C.

                                    2
1    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64, 166-67.

2    “We defer . . . to an IJ’s credibility determination

3    unless . . . it is plain that no reasonable fact-finder could

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

5    at 167.   Upon review, we conclude that the agency’s adverse

6    credibility determination is supported by substantial

7    evidence.

8        “[A] material inconsistency in an aspect of [an

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

10   persecution from which [s]he sought asylum . . . afford[s]

11   substantial evidence to support [an] adverse credibility

12   finding.”   Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,

13   295 (2d Cir. 2006)(internal quotation marks omitted).     As the

14   agency found, the record reflects material inconsistencies

15   regarding the basis of Ding’s family planning claim.      Ding’s

16   asylum application alleged a single forced abortion and she

17   testified to having undergone one abortion and to having one

18   intra-uterine device (“IUD”) removed.    Her medical records, in

19   contrast, showed that she had two IUDs removed and underwent

20   two abortions.   And a record that she obtained in 2014,

21   presented to resolve this inconsistency, instead introduced a

22   second inconsistency: Ding testified that family planning

                                     3
1    officials arrived at her home around noon on the day of her

2    abortion, but the 2014 record showed that she was at the hospital

3    about two hours earlier.   The agency was not required to credit

4    her explanations for these inconsistencies because the

5    explanations themselves were inconsistent.     Majidi v.

6    Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

7        Ding argues that these inconsistencies actually enhanced

8    her credibility, because they showed that she suffered worse

9    treatment than she had claimed and demonstrated that she was

10   not attempting to embellish her claim at the hearing.      But the

11   inconsistencies are clear.    They relate to the heart of her

12   claim.   They call into question the validity of Ding’s medical

13   records, and, by extension, her credibility as a whole.       See

14   Siewe v. Gonzales, 480 F.3d 160, 170-71 (2d Cir. 2007).      Ding

15   also argues that the agency “cherry-picked” facts by relying

16   on her medical records to show inconsistencies while also giving

17   the records little weight.   But the agency had the discretion

18   to determine the weight of the evidence, see Xiao Ji Chen v.

19   U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006), and,

20   as noted above, the inconsistencies that it cited called into

21   question the credibility of her testimony and the validity of

22   the records that she presented.

                                    4
1        Given these inconsistencies bearing directly on the basis

2    of Ding’s asylum claim, we conclude that substantial evidence

3    supports the agency’s adverse credibility determination.    See

4    Xian Tuan Ye, 446 F.3d at 295; Xiu Xia Lin, 534 F.3d at 167.

5    Because Ding’s claims were all based on the same factual

6    predicate, the adverse credibility determination is

7    dispositive of her petition for asylum, withholding of removal,

8    and CAT relief.   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

9    Cir. 2006).

10       For the foregoing reasons, the petition for review is

11   DENIED.

12                                FOR THE COURT:
13                                Catherine O’Hagan Wolfe, Clerk




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