     14-2274
     Ding v. Lynch
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A201 120 232

                          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   15th day of December, two thousand fifteen.
 5
 6   PRESENT:
 7            PETER W. HALL,
 8            DEBRA ANN LIVINGSTON,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   YINDI DING,
14                         Petitioner,
15
16                   v.                                              14-2274
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21                 Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     John W. Reinhardt, Huntington, New
25                                       York.
26
27   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
28                                       Assistant Attorney General; Blair T.
1                               O’Connor, Assistant Director; Scott
2                               M. Marconda, Trial Attorney, Office
3                               of Immigration Litigation, United
4                               States Department of Justice,
5                               Washington, D.C.
6

7        UPON DUE CONSIDERATION of this petition for review of a

8    Board of Immigration Appeals (“BIA”) decision, it is hereby

9    ORDERED, ADJUDGED, AND DECREED that the petition for review is

10   DISMISSED in part and DENIED in part.

11       Petitioner Yindi Ding, a native and citizen of the People’s

12   Republic of China, seeks review of a May 30, 2014, decision of

13   the BIA affirming a March 1, 2013, decision of an Immigration

14   Judge (“IJ”) denying Ding’s application for asylum, withholding

15   of removal, and relief under the Convention Against Torture

16   (“CAT”).   In re Yindi Ding, No. A201 120 232 (B.I.A. May 30,

17   2014), aff’g No. A201 120 232 (Immig. Ct. N.Y. City Mar. 1,

18   2013).   We assume the parties’ familiarity with the underlying

19   facts and procedural history in this case.

20       As an initial matter, we lack jurisdiction to review the

21   agency’s decision insofar as it pretermitted Ding’s untimely

22   asylum application.   See 8 U.S.C. § 1158(a)(3).   Accordingly,

23   to the extent Ding seeks review of that determination, her

24   petition is dismissed.   However, we may review Ding’s challenge

25   to the agency’s denial of withholding of removal and CAT relief.

                                    2
1        Under the circumstances of this case, we have reviewed the

2    IJ’s decision as modified by the BIA, i.e., minus the basis for

3    denying relief that the BIA declined to consider (the denial

4    of CAT relief unrelated to credibility).     See Xue Hong Yang v.

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

6    applicable standards of review are well established.              See

7    8 U.S.C. § 1252(b)(4)(B); see also Su Chun Hu v. Holder, 579

8    F.3d 155, 158 (2d Cir. 2009).

9        The   agency   may,   “[c]onsidering   the   totality    of   the

10   circumstances, . . . base a credibility determination on the

11   demeanor, candor, or responsiveness of the applicant . . ., the

12   inherent plausibility of the applicant’s . . . account, the

13   consistency between the applicant’s . . . written and oral

14   statements (whenever made and whether or not under oath and

15   considering the circumstances under which the statements were

16   made), . . . without regard to whether an inconsistency . . .

17   goes to the heart of the applicant’s claim.”                8 U.S.C.

18   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

19   163-64 (2d Cir. 2008).

20       Ding sought asylum and related relief based on her alleged

21   forced sterilization under China’s family planning policy in

22   1980 and her conversion to Christianity in the United States.


                                     3
1    In finding her not credible, the IJ reasonably relied on Ding’s

2    demeanor, noting that she failed to respond directly to

3    questions     throughout     her    testimony.          See    8   U.S.C.

4    § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d 77,

5    81 n.1 (2d Cir. 2005).     That finding is supported by the record.

6    The   IJ’s    demeanor   finding     and     the   overall    credibility

7    determination     are    bolstered      by    record    inconsistencies

8    regarding Ding’s medical records from China.             See Li Hua Lin

9    v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006); see

10   also Xiu Xia Lin, 534 F.3d at 165-67.              Ding did not provide

11   compelling    explanations    for    these     inconsistencies.      See

12   Majidi, 430 F.3d at 80.

13         The agency also reasonably relied on Ding’s inability to

14   testify credibly about her religion.           Although the agency may

15   err in basing a credibility determination on an applicant’s lack

16   of doctrinal knowledge, there are “instances in which the nature

17   of an individual applicant’s account would render h[er] lack

18   of a certain degree of doctrinal knowledge suspect and could

19   therefore provide substantial evidence in support of an adverse

20   credibility finding.”      Rizal v. Gonzales, 442 F.3d 84, 90 (2d

21   Cir. 2006).    Because Ding testified that she had been reading

22   the Bible every day for six years and attending church regularly


                                         4
1    during that time, the agency did not err in questioning her

2    credibility based on her lack of basic doctrinal knowledge.

3    See id.

4        The agency also found an inconsistency in Ding’s testimony

5    “that she had received a [U.S.] doctor’s letter in 2011,”

6    whereas the undated letter indicates that it was printed on

7    December 15, 2010.   CAR at 56.       This discrepancy, if there was

8    any, does not amount to an inconsistency.            Ding at first

9    explained that she did not remember the exact date, but

10   responded that “it’s around 2011” after the government asked

11   “when [she] got [the letter], approximately” and whether she

12   could “estimate the year.”        Id. at 112-14.       Thus, Ding’s

13   testimony was all that it purported to be:             a reasonable

14   approximation.   We would be reluctant to leave undisturbed the

15   IJ’s credibility determination if it rested substantially on

16   this supposed inconsistency.      But we conclude that remand is

17   futile and therefore not required because “(1) substantial

18   evidence in the record relied on by the IJ, considered in the

19   aggregate, supports the IJ’s finding that petitioner lacked

20   credibility, and (2) disregarding those aspects of the IJ's

21   reasoning that are tainted by error, we can state with

22   confidence that the IJ would adhere to his decision were the


                                       5
1    petition remanded.”        Siewe v. Gonzales, 480 F.3d 160, 167 (2d

2    Cir.2006) (internal quotation marks omitted).

3          Having found that Ding’s testimony was not credible, the

4    agency reasonably relied further on her failure to rehabilitate

5    her   testimony     with     reliable    evidence   corroborating    or

6    independently supporting her claims of past harm and fear of

7    future harm.   See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

8    Cir. 2007).    Ding did not submit evidence of her pregnancy or

9    other medical records from China and admitted that she made no

10   effort to obtain such evidence.         The agency reasonably declined

11   to credit an unsworn letter from Ding’s daughter.           See Y.C. v.

12   Holder, 741 F.3d 324, 332 (2d Cir. 2013).                   It likewise

13   reasonably gave little evidentiary weight to the U.S. doctor’s

14   letter because it was an undated email copy that provided only

15   “inferential evidence” for Ding’s claim and did not include the

16   reports on which it claimed to rely, and because the doctor was

17   not available for cross-examination.           CAR at 57.

18         Ultimately,      the      agency’s       adverse      credibility

19   determination is supported by substantial evidence.                 See

20   8 U.S.C. § 1158(b)(1)(B)(iii).          That finding is dispositive of

21   withholding of removal and CAT relief.          See Paul v. Gonzales,

22   444 F.3d 148, 156-57 (2d Cir. 2006).


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

2   DISMISSED in part and DENIED in part.

3                              FOR THE COURT:
4                              Catherine O=Hagan Wolfe, Clerk




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