     15-1388
     Ling v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A205 083 153

                          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   8th day of September, two thousand sixteen.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            PETER W. HALL,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   JIANG LING,
14            Petitioner,
15
16                   v.                                              15-1388
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Zhen Liang Li, New York, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Anthony
27                                       P.   Nicastro,   Acting   Assistant
28                                       Director; Sabatino F. Leo, Trial
29                                       Attorney, Office of Immigration
30                                       Litigation,      United      States
31                                       Department of Justice, Washington,
32                                       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 is

4    DENIED.

5        Petitioner Jiang Ling, a native and citizen of the People’s

6    Republic of China, seeks review of a March 30, 2015, decision

7    of the BIA, affirming an April 9, 2013, decision of an

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

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).    In re Jiang Ling, No. A205 083 153 (B.I.A.

11   Mar. 30, 2015), aff’g No. A205 083 153 (Immig. Ct. N.Y. City

12   Apr. 9, 2013).     We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we review both the

15   IJ’s and BIA’s decisions.      Yun-Zui Guan v. Gonzales, 432 F.3d

16   391, 394 (2d Cir. 2005).      The applicable standards of review

17   are well established.     8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin

18   v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

19       For asylum applications like Ling’s, governed by the REAL

20   ID Act, the agency may, “[c]onsidering the totality of the

21   circumstances,”    base   a   credibility    finding   on   an   asylum

22   applicant’s   “demeanor,      candor,   or   responsiveness,”      and

23   inconsistencies in her or her witness’s statements, “without

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1    regard to whether” those inconsistencies go “to the heart of

2    the applicant’s claim.”      8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

 3   Xia Lin, 534 F.3d at 163-64.            “We defer . . . to an IJ’s

 4   credibility determination unless, from the totality of the

 5   circumstances, it is plain that no reasonable fact-finder could

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

 7   at 167.    As discussed below, substantial evidence supports the

 8   adverse credibility determination.

 9       The agency reasonably rested its adverse credibility

10   determination on inconsistencies between Ling’s testimony and

11   her mother’s letter.     Id. at 166-67.         First, Ling testified

12   that her mother took her to a chiropractor for treatment after

13   she was released from detention, but when asked why her mother’s

14   letter omitted that visit, responded that her testimony was

15   correct.     See id. at 166-67 & n.3 (“An inconsistency and an

16   omission are . . . functionally equivalent” for credibility

17   purposes).      The agency was not required to credit this

18   explanation because it did not account for why Ling’s mother

19   omitted this information from the letter.                See Majidi v.

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

21   do more than offer a plausible explanation for his inconsistent

22   statements to secure relief; he must demonstrate that a

23   reasonable    fact-finder   would       be   compelled   to   credit   his

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1    testimony.”).        Second, Ling testified that she hid at her

2    friend’s home after escaping a police raid in 2010, but her

3    mother’s letter stated that Ling hid at a relative’s home.     The

4    agency was not required to credit Ling’s explanation that her

5    mother considered her friend as her son.      See Majidi, 430 F.3d

6    at 80.    The agency also reasonably found both inconsistencies

7    significant because they related to events that occurred in the

8    immediate aftermath of Ling’s only two encounters with police,

9    which called into doubt whether those encounters had occurred

10   at all.     See Xiu Xia Lin, 534 F.3d at 167.

11       The agency also reasonably relied on the inconsistencies

12   between     Ling’s     testimony   and   credible-fear   interview

13   concerning her treatment in detention.         See Ming Zhang v.

14   Holder, 585 F.3d 715, 724-25 (2d Cir. 2009) (observing that

15   inconsistencies arising from a credible-fear interview may

16   serve as an appropriate basis for an adverse credibility

17   determination).       First, Ling testified that, while detained,

18   she had been kicked in the stomach and slapped, and had her hair

19   pulled.     But when asked at her credible-fear interview whether

20   anything happened to her in detention, she responded: “They

21   interrogated me and did not give me any food or drink for one

22   day.”     The agency was not required to credit Ling’s explanation

23   that her testimony was correct because it did not account for

                                        4
1    why she omitted this information during her credible-fear

2    interview.     See Majidi, 430 F.3d at 80.    Second, Ling testified

3    that the police destroyed her bible in detention but omitted

4    this from her application and credible-fear interview.           Ling

5    does not challenge the agency’s reliance on this omission in

6    her brief.    See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.

7    1998).       The    agency,   moreover,   reasonably     found   both

8    inconsistencies to be significant because they concerned the

9    sole incident of alleged persecution.        See Xiu Xia Lin, 534 F.3d

10   at 163-64.

11       We decline to consider Ling’s unexhausted challenge to the

12   reliability of the credible-fear interview.             Ling did not

13   challenge the reliability of that interview before the BIA, the

14   BIA did not address the issue, and the Government asserts

15   exhaustion.     See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

16   104, 123-25 (2d Cir. 2007) (providing that judicially imposed

17   issue exhaustion is mandatory).

18       The agency also did not err in concluding that Ling’s

19   corroborating evidence was insufficient to rehabilitate her

20   credibility.       See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

21   Cir. 2007) (recognizing that “[a]n applicant’s failure to

22   corroborate his . . . testimony may bear on credibility,

23   because the absence of corroboration in general makes an

                                        5
1    applicant unable to rehabilitate testimony that has already

2    been called into question” or is viewed as suspicious).                  The

3    agency     reasonably   gave      diminished        weight      to   Ling’s

4    corroborating     evidence:    the       letter   from   her    mother   was

5    inconsistent with Ling’s testimony, and the letters from fellow

6    church members in China were from interested parties not subject

7    to cross examination.       See Matter of H-L-H- & Z-Y-Z-, 25 I. &

8    N. Dec. 209, 215 (B.I.A. 2010), rev’d on other grounds by Hui

9    Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); see also Y.C.

10   v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the

11   agency's determination of the weight afforded to an alien's

12   documentary evidence.”).

13        Given the foregoing inconsistencies, omissions, and Ling’s

14   insufficient corroborating evidence, the totality of the

15   circumstances supports the credibility ruling.                 Xiu Xia Lin,

16   534 F.3d at 167.    Because Ling’s claims for relief were based

17   on   the   same   factual     predicate,      the   adverse-credibility

18   determination is dispositive of asylum, withholding of removal,

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

20   2006).

21        For the foregoing reasons, the petition for review is

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

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

                                          6
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, Clerk




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