     17-2800
     Sun v. Barr
                                                                                   BIA
                                                                               Leeds, IJ
                                                                           A205 240 400
                        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 13th day of August, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DEBRA ANN LIVINGSTON,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   XIAOQIAN SUN,
14            Petitioner,
15
16                 v.                                            17-2800
17                                                               NAC
18   WILLIAM P. BARR,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Wei Gu, Albertson, NY.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; John S. Hogan,
27                                    Assistant Director; Matthew A.
28                                    Spurlock, Trial Attorney, Office
29                                    of Immigration Litigation, United
30                                    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

4    is DENIED.

5        Petitioner Xiaoqian Sun, a native and citizen of the

6    People’s Republic of China, seeks review of an August 16,

7    2017, decision of the BIA affirming a February 3, 2017,

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

9    application for asylum, withholding of removal, and relief

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

11   Sun, No. A 205 240 400 (B.I.A. Aug. 16, 2017), aff’g No. A 205

12   240 400 (Immig. Ct. N.Y. City Feb. 3, 2017).                  We assume the

13   parties’ familiarity with the underlying facts and procedural

14   history in this case.

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and BIA’s decisions.               Wangchuck v. Dep’t of

17   Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).                 We review

18   adverse     credibility     determinations       under    a     substantial

19   evidence standard.         See 8 U.S.C. § 1252(b)(4)(B); Hong Fei

20   Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).                          The

21   governing    REAL     ID   Act   credibility     standard      provides   as

                                          2
1    follows:

 2       Considering the totality of the circumstances, and
 3       all relevant factors, a trier of fact may base a
 4       credibility determination on the demeanor, candor,
 5       or responsiveness of the applicant or witness, the
 6       inherent   plausibility   of  the   applicant’s   or
 7       witness’s account, the consistency between the
 8       applicant’s or witness’s written and oral statements
 9       . . . the internal consistency of each such
10       statement, the consistency of such statements with
11       other evidence of record . . . and any inaccuracies
12       or falsehoods in such statements, without regard to
13       whether an inconsistency, inaccuracy, or falsehood
14       goes to the heart of the applicant’s claim, or any
15       other relevant factor.
16
17   8 U.S.C. § 1158(b)(1)(B)(iii).        “We defer . . . to an IJ’s

18   credibility determination unless . . . it is plain that no

19   reasonable fact-finder could make such an adverse credibility

20   ruling.”    Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

21   2008); see 8 U.S.C. § 1252(b)(4)(B).           As discussed below,

22   substantial evidence supports the agency’s determination that

23   Sun was not credible.

24        “[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.             Xian

28   Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir.


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

2    2005)).   Although “asylum applicants are not required to list

3    every incident of persecution” in their applications, Pavlova

4    v. INS, 441 F.3d 82, 90 (2d Cir. 2006), the agency may

5    reasonably conclude that an applicant lacks credibility if

6    her application and testimony “described the same incidents

7    of persecution differently,” Lianping Li v. Lynch, 839 F.3d

8    144, 150 (2d Cir. 2016).     Moreover, “IJs must distinguish

9    between   (1)   omissions   that   arise   merely    because   an

10   applicant’s oral testimony is more detailed than his or her

11   written application, and (2) omissions that tend to show that

12   an applicant has fabricated his or her claim.”      Hong Fei Gao,

13   891 F.3d at 82.

14       In Sun’s case, the agency reasonably found that her

15   supplemental statement and testimony contradicted, rather

16   than supplemented, her initial description of her abortion,

17   and suggested that she had fabricated her claim.      Absent the

18   additional information that the abortion was forced, Sun’s

19   application did not state an asylum claim.          See 8 U.S.C.

20   § 1101(a)(42) (extending refugee definition to cover “person

21   who has been forced to abort a pregnancy or to undergo

                                    4
1    involuntary sterilization” (emphasis added)).                  Whereas Sun’s

2    asylum application and initial statement alleged that she had

3    an abortion under pressure from her ex-boyfriend’s parents,

4    she made no mention of any involvement of family planning

5    authorities.       By contrast, her supplemental statement and

6    testimony claimed that two family planning officers came to

7    her parent’s home, “dragged” her to the local hospital, and

8    physically compelled her to have an abortion.

9        The IJ was not required to credit Sun’s explanation that

10   she did not know which details to include in her initial

11   statement because she was represented by counsel and her

12   initial       statement    described       the    involvement     of   family

13   planning authorities in her mother’s forced abortion in 1999.

14   See Majidi, 430 F.3d at 80 (“A petitioner must do more than

15   offer     a    plausible    explanation          for   [her]    inconsistent

16   statements to secure relief; [s]he must demonstrate that a

17   reasonable fact-finder would be compelled to credit [her]

18   testimony.”       (internal     quotation          marks   and     citations

19   omitted)).

20       The agency also reasonably found that Sun’s corroborating

21   evidence did not rehabilitate her testimony.                   See Biao Yang

                                            5
1    v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).                   The IJ gave

2    full weight to the medical records of Sun’s 2007 abortion but

3    concluded that they did not state or imply that Sun’s abortion

4    was involuntary.        And the IJ was permitted to give limited

5    weight to the letters from Sun’s mother, friend, and ex-

6    boyfriend, none of whom were available for cross examination.

7    See   Y.C.    v.    Holder,   741   F.3d   324,   334    (2d    Cir.   2013).

8    Moreover, only the ex-boyfriend stated that family planning

9    officials forced Sun to have an abortion; Sun’s mother and

10   friend did not state whether the abortion was forced or

11   voluntary.

12         The    material    inconsistency      regarding      whether     Sun’s

13   abortion      was    forced   or    voluntary     provided       substantial

14   evidence for the adverse credibility ruling.                   See Xian Tuan

15   Ye, 446 F.3d at 295; Majidi, 430 F.3d at 81.                   Because Sun’s

16   claims were all based on the same factual predicate, the

17   adverse credibility determination is dispositive of asylum,

18   withholding of removal, and CAT relief.                 Paul v. Gonzales,

19   444 F.3d 148, 156-57 (2d Cir. 2006).

20         For the foregoing reasons, the petition for review is

21   DENIED.      As we have completed our review, any stay of removal
                                           6
1    that the Court previously granted in this petition is VACATED,

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

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

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

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

6    34.1(b).

 7                               FOR THE COURT:
 8                               Catherine O’Hagan Wolfe,
 9                               Clerk of Court
10




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