     17-1823
     Yang v. Barr
                                                                                    BIA
                                                                               Straus, IJ
                                                                           A205 435 091

                         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 28th day of May, two thousand nineteen.
 5
 6   PRESENT:
 7            ROBERT D. SACK,
 8            BARRINGTON D. PARKER,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   MINYING YANG,
14            Petitioner,
15
16                  v.                                           17-1823
17                                                               NAC
18   WILLIAM P. BARR,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  David J. Rodkin, New York, NY.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; Douglas E.
27                                    Ginsburg, Assistant Director; John
28                                    M. McAdams, Jr., 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 Minying Yang, a native and citizen of the

6    People’s Republic of China, seeks review of a May 10, 2017,

7    decision of the BIA affirming a December 7, 2015, decision of

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

9    asylum,    withholding    of   removal,   and     relief       under   the

10   Convention Against Torture (“CAT”).       In re Minying Yang, No.

11   A 205 435 091 (B.I.A. May 10, 2017), aff’g No. A 205 435 091

12   (Immig. Ct. Hartford Dec. 7, 2015).           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, i.e., minus the

17   IJ’s determination that Yang’s testimony conflicted with the

18   country conditions evidence.      See Xue Hong Yang v. U.S. Dep’t

19   of Justice, 426 F.3d 520, 522 (2d Cir. 2005).               Accordingly,

20   the dispositive issue is whether the findings that the BIA

21   relied    on   provide   substantial   evidence       for   the   adverse

22   credibility     determination.         Id.;     see     also      8 U.S.C.

                                       2
1    § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

2    66 (2d Cir. 2008).     In making a credibility determination,

3    the   agency   must   “[c]onsider[]     the       totality         of    the

4    circumstances” and may base a finding on the applicant’s

5    “demeanor, candor, or responsiveness, . . .                 the inherent

6    plausibility    of    the   applicant’s       .    .        .    account,”

7    inconsistencies in the applicant’s statements or between her

8    statements and other evidence, “without regard to whether an

9    inconsistency, inaccuracy, or falsehood goes to the heart of

10   the applicant’s claim, or any other relevant factor.”                     8

11   U.S.C.   § 1158(b)(1)(B)(iii).       “We   defer        . . . to        [the

12   agency’s] credibility determination unless, from the totality

13   of the circumstances, it is plain that no reasonable fact-

14   finder could make such an adverse credibility ruling.”                  Xiu

15   Xia Lin, 534 F.3d at 167.        We conclude that the adverse

16   credibility    determination   is    supported         by       substantial

17   evidence.

18   Inconsistencies

19         Discrepancies among Yang’s testimony and her documentary

20   evidence called into question her credibility.              For example,

21   Yang testified that after she had the abortion, she returned

22   to work the following Monday.         The medical certificate,

                                      3
1    however, indicates that she had the abortion on Friday,

2    December 25, 2009, and was excused from work through Friday,

3    January 9.        And the medical certificate does not indicate

4    that the abortion was forced or involuntary.                 See Tu Lin v.

5    Gonzales, 446 F.3d 395, 400 (2d Cir. 2006) (upholding adverse

6    credibility       determination    based,    in   part,      on    fact   that

7    country        conditions   evidence       reflected        that    abortion

8    certificates were provided only to obtain leave from work

9    following voluntary abortions).

10          Other inconsistencies bolster the adverse credibility

11   determination.        See Hong Fei Gao v. Sessions, 891 F.3d 67,

12   77 (2d Cir. 2018) (reiterating that “cumulative effect” of

13   even    minor    or   ancillary    inconsistencies      can       “be   deemed

14   consequential” (quoting Xiu Xia Lin, 534 F.3d at 167)).

15   Although Yang testified that it was easy for her to get

16   pregnant, in her declaration she averred that she did not

17   want to terminate her pregnancy because “it was not easy for

18   [her]     to    get   pregnant.”    When    asked      to    explain      this

19   inconsistency, Yang denied writing the statement, but later

20   explained that the statement referred to the government’s

21   harsh treatment of her during her pregnancy.                The IJ was not

22   required to accept these conflicting explanations and neither

                                          4
1    explanation    resolved     the    inconsistency.          See     Majidi      v.

2    Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must

3    do   more    than   offer    a    plausible          explanation    for     his

4    inconsistent statements to secure relief; he must demonstrate

5    that a reasonable fact-finder would be compelled to credit

6    his testimony.” (internal quotation marks omitted)).

7    Implausible Testimony

8         The IJ also reasonably relied on the implausibility of

9    aspects of Yang’s testimony related to her pregnancy.                     See 8

10   U.S.C.     § 1158(b)(1)(B)(iii).             Yang     testified    that     she

11   reported to family planning officials semiannually for an IUD

12   check, that her IUD was in place on October 3, 2009, her last

13   examination before her second pregnancy, and that her next

14   menstrual cycle ended on October 8.                  Yang’s December 2009

15   abortion     certificate     places         her      conception     date       at

16   approximately October 8.          Yang testified that she confirmed

17   her pregnancy at a private clinic in November 2009, and that

18   her ultrasound revealed that the IUD had dislodged, but Yang

19   had no medical records to corroborate those facts.                 Given the

20   brief timeframe between confirmation of the IUD and Yang’s

21   pregnancy,    and   the   lack    of       medical    documentation       of   a

22   dislodged IUD, the IJ’s skepticism of the plausibility of

                                            5
1    Yang’s account was reasonable.                See Biao Yang v. Gonzales,

2    496    F.3d   268,   273    (2d    Cir.       2007)     (“[T]he    absence    of

3    corroboration      in    general     makes        an   applicant    unable    to

4    rehabilitate testimony that has already been called into

5    question.”).

6    Vague Testimony

7           Finally,    the     adverse      credibility       determination       is

8    strengthened by the IJ’s finding that Yang’s testimony about

9    her employment history was vague.                 Shunfu Li v. Mukasey, 529

10   F.3d 141, 147 (2d Cir. 2008) (explaining that vague testimony

11   can support an adverse credibility determination when the IJ

12   “attempts to solicit more detail from the alien”).                      Yang’s

13   application reflected that she was fired from an “important

14   position” as an accountant sometime after 2000, but found a

15   new accounting job in 2008.          She testified that she was fired

16   from that new job because of her unauthorized pregnancy.

17   When    the   IJ   asked    Yang   if       she   found   another    job,    she

18   questioned whether he was referring to an “official” or “true”

19   job; when the IJ said “any job,” Yang responded, but without

20   elaboration, that she was hired for “short-term purpose” then

21   “discontinue[d]” after one or two months.                  When the IJ then

22   further inquired whether Yang had worked for a particular

                                             6
1    company, Yang replied that she had, but still offered no

2    significant detail about her alleged sporadic employment over

3    the two years between her firing and her arrival in the United

4    States.   See Shunfu Li, 529 F.3d at 147.

5        Taken     together,    the    inconsistencies      and    implausible

6    testimony,    all   of    which    relate   to   her   IUD,    pregnancy,

7    abortion, and employment from the time of the abortion until

8    she came to the United States, provide substantial evidence

9    for the adverse credibility determination.             See Hong Fei Gao,

10   891 F.3d at 77 (noting that agency may rely on “cumulative

11   effect” of minor discrepancies); Xiu Xia Lin, 534 F.3d at 165

12   (treating    agency’s     adverse   credibility     determinations      as

13   “‘conclusive    unless     any    reasonable     adjudicator    would   be

14   compelled to conclude to the contrary.’” (quoting 8 U.S.C.

15   § 1252(b)(4)(B))).       The adverse credibility determination is

16   dispositive of asylum, withholding of removal, and CAT relief

17   because all three claims are based on the same factual

18   predicate.     See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d

19   Cir. 2006).

20       For the foregoing reasons, the petition for review is

21   DENIED.   As we have completed our review, any stay of removal

22   that the Court previously granted in this petition is VACATED,

                                          7
1   and any pending motion for a stay of removal in this petition

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

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

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

5   34.1(b).

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




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