         12-3064
         Dai v. Holder
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A087 568 563
                                                                               A087 568 564
                          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 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 United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 6th day of March, two thousand fourteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                RAYMOND J. LOHIER, JR.,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       JIAN FEI DAI, BIA YAO ZHANG
14                Petitioners,
15
16                       v.                                     12-3064
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONERS:              David X. Feng, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Blair T. O’Connor,
27                                     Assistant Director, Claire L.
28                                     Workman, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, 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

 4   is DENIED.

 5       Petitioners Jian Fei Dai and Bao Yao Zhang, natives and

 6   citizens of China, seek review of a July 9, 2012, decision

 7   of the BIA affirming a May 11, 2011, decision of Immigration

 8   Judge (“IJ”) Gabriel C. Videla, denying Dai’s application

 9   for asylum, withholding of removal and relief under the

10   Convention Against Torture (“CAT”).    In re Jian Fei Dai,Bao

11   Yao Zhang, Nos. A087 568 563/564 (B.I.A. July 9, 2012),

12   aff’g Nos. A087 568 563/564 (Immig. Ct. N.Y. City May 11,

13   2011).   We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as modified by the BIA.    See Xue Hong Yang

17   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

18   Accordingly, the IJ’s finding that the asylum application

19   was untimely is not before us.    The applicable standards of

20   review are well established. See 8 U.S.C. § 1252(b)(4)(B);

21   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

22       For applications like this one, governed by the REAL ID

23   Act of 2005, the agency may base a credibility finding on an

                                   2
 1   asylum applicant’s demeanor, the plausibility of her

 2   account, and inconsistencies in her statements, without

 3   regard to whether they go “to the heart of the applicant’s

 4   claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Matter of J–Y–C–, 24

 5   I. & N. Dec. 260, 265 (B.I.A. 2007). Analyzed under these

 6   standards, the agency’s adverse credibility determination is

 7   supported by substantial evidence.

 8       In finding Dai not credible, the IJ reasonably relied

 9   on the implausibility of her testimony regarding her travel

10   to the United States, and from Texas to New York.    Dai

11   testified that she traveled through several countries before

12   arriving in the United States and, during these stops, she

13   handed her passport to border officials; however, her

14   passport bore no stamps from any country other than China.

15   Dai’s contention that the IJ ignored her explanation that

16   she had used another passport when she traveled is

17   unsupported by the record, as Dai repeatedly testified that

18   the passport she presented to the court was the same

19   passport she had used to travel to this country.

20       Moreover, the agency reasonably found implausible Dai’s

21   testimony that she left Houston in the afternoon, traveling

22   by car, and arrived in New York at six or seven o'clock the


                                   3
 1   next morning.   The agency was not required to credit her

 2   explanation that her testimony was mistaken because she is

 3   uneducated and could not remember the details of her trip.

 4   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)

 5   (holding that the agency need not credit an applicant’s

 6   explanations unless those explanations would compel a

 7   reasonable fact-finder to do so).   Thus, as the IJ’s

 8   findings are “tethered to record evidence, and there is

 9   nothing else in the record from which a firm conviction of

10   error could properly be derived,” the inherent

11   implausibility finding will not be disturbed.     Wensheng Yan

12   v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2009).

13       The agency also reasonably relied on the inconsistences

14   between Dai and Zhang’s testimony as to how much they paid

15   to come to the United States, and whether Dai arrived in New

16   York in the early morning or the afternoon.     They have not

17   reconciled this testimony or presented any compelling

18   explanation for the inconsistencies.   See Majidi, 430 F.3d

19   at 80-81.   Although Petitioners argue that these

20   inconsistencies did not go to the heart of Dai’s claim,

21   under the REAL ID Act, the agency may base an adverse

22   credibility determination on testimonial inconsistencies,


                                   4
 1   regardless of whether they go to the heart of an applicant’s

 2   claim.   See 8 U.S.C. 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

 3   F.3d at 167 (finding that, under the REAL ID Act, “an IJ may

 4   rely on any inconsistency or omission in making an adverse

 5   credibility determination as long as the ‘totality of the

 6   circumstances’ establishes that an asylum applicant is not

 7   credible” (emphasis in original)).

 8       Having found Dai not credible, the agency reasonably

 9   noted that her failure to provide corroborative evidence

10   further undermined her credibility.    An applicant’s failure

11   to corroborate her testimony may bear on credibility, either

12   because the absence of particular corroborating evidence is

13   viewed as suspicious, or because the absence of

14   corroboration in general makes an applicant unable to

15   rehabilitate testimony that has already been called into

16   question.     See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

17   Cir. 2007).

18       Here, although Dai submitted abortion and sterilization

19   certificates, the IJ did not abuse his discretion in finding

20   these documents to be unreliable because they misstated

21   Dai’s age.     See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

22   F.3d 315, 342 (2d Cir. 2006) (finding that the weight

23   afforded to the applicant’s evidence lies largely within the
                                     5
 1   discretion of the agency).     The age discrepancy was

 2   especially relevant given that Dai testified that she was

 3   forced to have an abortion because she was under the age of

 4   22 – the minimum age to be married –     but the abortion

 5   certificate listed her age as 23.

 6       Likewise, although Dai presented medical documentation

 7   indicating that she had been sterilized, it was within the

 8   agency’s discretion to accord these documents little weight,

 9   given her varying testimony as to whether the doctor was a

10   man or a woman, and how many times she visited the doctor’s

11   office.

12       Given the inconsistent and implausible testimony, as

13   well as the lack of corroboration, the agency’s adverse

14   credibility determination is supported by substantial

15   evidence.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

16   534 F.3d at 167.     Having reasonably found that Dai failed to

17   establish eligibility for asylum on credibility grounds, the

18   agency did not err in denying withholding of removal and

19   relief under the CAT, as these claims shared the same

20   factual predicate.     See Paul v. Gonzales, 444 F.3d 148, 156-

21   57 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice,

22   426 F.3d 520, 523 (2d Cir. 2005).

23
                                     6
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

4    is VACATED, and any pending motion for a stay of removal in

5    this petition is DISMISSED as moot.    Any pending request for

6    oral argument in this petition is DENIED in accordance with

7    Federal Rule of Appellate Procedure 34(a)(2), and Second

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12




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