         09-0566-ag
         Tang v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A098 221 758
                                                                               A098 221 759
                           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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 28 th day of June, two thousand ten.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                ROBERT A. KATZMANN,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       _______________________________________
12
13       MAI ZHU TANG, XIANG HUANG,
14                Petitioners,
15
16                        v.                                    09-0566-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL, UNITED STATES
20       DEPARTMENT OF JUSTICE,
21                Respondents.
22       ______________________________________
23
24       FOR PETITIONERS:              Norman Kwai Wing Wong, New York, New
25                                     York.
26
27       FOR RESPONDENTS:              Tony West, Assistant Attorney
28                                     General, Civil Division; Barry J.
29                                     Pettinato, Assistant Director; Julia
30                                     J. Tyler, Trial Attorney, Office of
31                                     Immigration Litigation, Civil
32                                     Division, United States Department
33                                     of Justice, 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 Mai Zhu Tang and Xiang Huang, natives and

6    citizens of the People’s Republic of China, seek review of a

7    January 23, 2009, order of the BIA affirming the May 1,

8    2006, decision of Immigration Judge (“IJ”) Barbara A. Nelson

9    denying Petitioners’ application for asylum, withholding of

10   removal, and relief under the Convention Against Torture

11   (“CAT”). 1   In re Mai Zhu Tang, Nos. A 098 221 758/759

12   (B.I.A. Jan. 23, 2009), aff’g Nos.    A 098 221 758/759

13   (Immig. Ct. N.Y. City May 1, 2006).    We assume the parties’

14   familiarity with the underlying facts and procedural history

15   in this case.

16        Under the circumstances of this case, we review the

17   decision of the IJ as supplemented by the BIA.    See Yan Chen

18   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005); Yun-Zui Guan



             1
             Because Xiang Huang’s claim rests entirely upon Mai
       Zhu Tang’s claim, we refer largely to Tang throughout
       this order. We further note that because the BIA made
       clear that it left undisturbed its December 2007 order
       affirming the IJ’s adverse credibility determination, we
       review that decision as well.

                                    2
1    v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).     The

2    applicable standards of review are well-established.

3    Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008);

4    Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

5    I.   Adverse Credibility Determination

6         In evaluating Tang’s credibility, the IJ relied on

7    misrepresentations she made during her airport and credible

8    fear interviews, and on her first asylum application.     Tang

9    acknowledges that these statements were false, but argues

10   that the IJ impermissibly relied on them in making an

11   adverse credibility determination because they were made

12   under duress resulting from the smuggler’s prior threats.

13   Although plausible, no reasonable factfinder would have been

14   compelled to credit this explanation.     See Majidi v.

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

16   additionally argues that false statements made during

17   airport or credible fear interviews may not provide the

18   basis for an adverse credibility determination.     However, we

19   have found that an IJ may properly rely on the records of

20   such interviews if they bear “sufficient indicia of

21   reliability.”     See Ming Zhang v. Holder, 585 F.3d 715, 725

22   (2d Cir. 2009).     As Tang does not dispute the content of the


                                     3
1    records of her airport and credible fear interviews, their

2    reliability is not at issue.

3          Tang further argues that the IJ afforded her

4    documentary evidence insufficient weight.    However, we have

5    found that such determinations lie largely within the

6    discretion of the agency.    See Xiao Ji Chen v. United States

7    Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).     In

8    particular, we have found no error in the agency’s

9    conclusion that so-called “abortion certificates” are not

10   probative.    See Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d

11   Cir. 2006).    Additionally, in light of the IJ’s adverse

12   credibility determination, the IJ did not err by noting the

13   absence of corroborative evidence that may have

14   rehabilitated Tang’s otherwise not credible testimony.       See

15   Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

16         Ultimately, the IJ’s adverse credibility determination

17   was supported by substantial evidence.

18   II.   Well-Founded Fear of Future Persecution

19         Because the IJ did not question that Tang gave birth to

20   a second child in the United States, the adverse credibility

21   determination is not dispositive of Tang’s claim that she

22   established a well-founded fear of future persecution on


                                    4
1    that basis.   Nonetheless, substantial evidence supports the

2    BIA’s finding that Tang did not meet her burden of proof.

3    See Jian Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir.

4    2008).

5        We find no support for Tang’s argument that the BIA did

6    not adequately consider the evidence of record.    See Xiao Ji

7    Chen, 471 F.3d at 342.   Indeed, we have previously upheld

8    the BIA’s consideration of the same or similar evidence.

9    See Jian Hui Shao, 546 F.3d at 163.   In this case, the IJ

10   reasonably afforded diminished weight to the letter from

11   Tang’s sister claiming that she had been forcibly sterilized

12   based on the birth of her two children in China.    See id. at

13   546 F.3d at 160-61.   Moreover, although Tang asserts that

14   remand is necessary to allow her the opportunity to

15   supplement the administrative record with updated country

16   conditions evidence, remand for agency consideration of

17   documents outside the administrative record is

18   inappropriate.   See Xiao Xing Ni v. Gonzales, 494 F.3d 260,

19   269-70 (2d Cir. 2007).   Thus, substantial evidence supports

20   the agency’s determination that Tang failed to establish a

21   well-founded fear of future persecution.

22       As Tang was unable to meet her burden for asylum, she


                                   5
1    necessarily failed to meet the higher burden required for

2    withholding of removal and CAT relief.    See Paul v.

3    Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

4        For the foregoing reasons, the petition for review is

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

6    removal that the Court previously granted in this petition

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

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

9    oral argument in this petition is DENIED in accordance with

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

11   Circuit Local Rule 34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk
14




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