17-1869
Wang v. Whitaker
                                                                                               BIA
                                                                                         Loprest, IJ
                                                                                       A205 817 404
                        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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
24th day of January, two thousand nineteen.

Present:    ROBERT A. KATZMANN,
                        Chief Judge,
            JON O. NEWMAN,
            SUSAN L. CARNEY,
                        Circuit Judges.
_____________________________________

YALAN WANG,

                        Petitioner,

                   v.                                                      No. 17-1869
                                                                           NAC
MATTHEW G. WHITAKER, ACTING UNITED
STATES ATTORNEY GENERAL,

                  Respondent.
_____________________________________

For Petitioner:                       JOSHUA BARDAVID, ESQ., New York, NY.

For Respondent:                       CHAD A. READLER, Acting Assistant Attorney General, SONG
                                      PARK, Senior Litigation Counsel, KIMBERLY A. BURDGE, Trial
                                      Attorney, Office of Immigration Litigation, Civil Division,
                                      United States Department of Justice, Washington, DC.
       UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, and DECREED that the

petition for review is DENIED.

       Petitioner Yalan Wang, a native and citizen of the People’s Republic of China, seeks

review of a May 23, 2017, decision of the BIA affirming an August 26, 2016, decision of an

Immigration Judge (“IJ”) denying asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Yalan Wang, No. A205 817 404 (B.I.A. May 23,

2017), aff’g No. A205-817-404 (Immig. Ct. N.Y.C. Aug. 26, 2016). We assume the parties’

familiarity with the underlying facts and procedural history in this case.

       We assess the IJ’s decision as modified by the BIA, i.e., minus the findings the BIA

rejected. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We review

factual findings for substantial evidence, affording “particular deference” to the IJ’s credibility

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

Zhang v. INS, 386 F.3d 66, 73 (2d Cir. 2004)). We must treat the agency’s factual findings as

“conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”

Id. at 165 (quoting 8 U.S.C. § 1252(b)(4)(B)). When adjudicating an asylum application, an IJ

“may base a credibility determination on the demeanor, candor, or responsiveness of the applicant

or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency

between the applicant’s or witness’s written and oral statements . . . , the internal consistency of

each such statement,” and the consistency of any statements with the rest of the record, “without

regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s

claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 163-64.

       Substantial evidence supports the agency’s determination that Wang was not credible in

claiming that family planning officials in China forced her to have an abortion. The agency


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reasonably relied in part on Wang’s demeanor, noting that she was evasive when testifying about

whether she decided to come to the United States before or after her purportedly forced abortion.

See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005)

(recognizing that particular deference is given to the trier of fact’s assessment of demeanor). That

finding and the overall credibility determination are bolstered by Wang’s inconsistent testimony

regarding whether she sought to apply for a student visa before the abortion or only afterward. See

Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).

       The agency also reasonably relied on Wang’s evasive testimony when first asked whether

she lied to U.S. consular officials in China and when asked about her ability to speak English

during her interview with those officials. See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi, 430 F.3d 77,

81 n.1. Although the agency must take care not to “penalize an applicant for lying to escape a

country where . . . she faces persecution,” Rui Ying Lin v. Gonzales, 445 F.3d 127, 134 (2d Cir.

2006), the IJ reasonably relied on Wang’s evasive testimony before the IJ about her visa interview

and her failure to timely and openly disclose her false statements at her immigration court hearing

in the United States, see 8 U.S.C. § 1158(b)(1)(B)(iii).

       Having questioned Wang’s credibility, the agency reasonably relied further on her failure

to rehabilitate her testimony with reliable corroborating evidence. “An applicant’s failure to

corroborate . . . her testimony may bear on credibility, because the absence of corroboration in

general makes an applicant unable to rehabilitate testimony that has already been called into

question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency reasonably

questioned whether Wang’s abortion certificate denoted an involuntary abortion rather than a

voluntary one, given U.S. State Department reports that such certificates are only issued after

voluntary procedures. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 263 (2d Cir. 2007); Tu Lin v.

Gonzales, 446 F.3d 395, 400 (2d Cir. 2006). Further, even if those reports are outdated as Wang


                                                 3
suggests,1 the 2012 report in the record of her case states that the Chinese government prohibits

the use of force and punishes officials who use force in carrying out abortions. This newer report

thus continues to support the implausibility of Wang’s position that officials would issue such

certificates for forced abortions. See Wensheng Yan v. Mukasey, 509 F.3d 63, 66-68 (2d Cir. 2007)

(recognizing that adverse credibility determination may be based on inherent implausibility in

applicant’s story if the “finding is tethered to record evidence” or based on common sense). The

IJ also reasonably declined to afford weight to the unsworn letter from Wang’s ex-boyfriend in

China. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring to agency’s decision to

afford little weight to husband’s letter because it was unsworn and from an interested witness).

         Given the IJ’s demeanor, inconsistency, and corroboration findings, the agency’s adverse

credibility determination is supported by substantial evidence and was dispositive of asylum,

withholding of removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

2006). For the foregoing reasons, the petition for review is DENIED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe
                                                      Clerk of Court




         1
          More recent State Department reports have reaffirmed that abortion certificates are provided for voluntary,
not involuntary, abortions in China. See Xiu Ying Wu v. U.S. Att’y Gen., 712 F.3d 486, 490 (11th Cir. 2013) (discussing
the 2007 China Profile of Asylum Claims and Country Conditions).

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