    17-240
    Yao v. Sessions
                                                                                  BIA
                                                                            Loprest, IJ
                                                                          A205 894 881
                           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.

         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 2nd day of October, two thousand eighteen.

    PRESENT:
             BARRINGTON D. PARKER,
             DEBRA ANN LIVINGSTON,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    YONGBO YAO, AKA YONG BO YAO,
                  Petitioner,

                      v.                                         17-240
                                                                 NAC
    JEFFERSON B. SESSIONS III,
    UNITED STATES ATTORNEY GENERAL,
                  Respondent.
    _____________________________________

    FOR PETITIONER:                   Gary J. Yerman, New York, NY.

    FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
                                      Attorney General; Derek C. Julius,
                                      Assistant Director; Enitan Omotayo
                                      Otunla, Trial Attorney, Office of
                                      Immigration Litigation, 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 Yongbo Yao, a native and citizen of the

People’s Republic of China, seeks review of a December 28,

2016, decision of the BIA affirming an October 2, 2015,

decision   of   an    Immigration       Judge   (“IJ”)    denying     Yao’s

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).                  In re Yongbo

Yao, No. A 205 894 881 (B.I.A. Dec. 28, 2016), aff’g No. A 205

894 881 (Immig. Ct. N.Y. City Oct. 2, 2015).               We assume the

parties’ familiarity with the underlying facts and procedural

history in this case.

     Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA and reach only the

adverse credibility ruling.         See Xue Hong Yang v. U.S. Dep’t

of Justice, 426 F.3d 520, 522 (2d Cir. 2005).              The standards

of   review     are    well   established.               See     8   U.S.C.

                                    2
§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

66 (2d Cir. 2008).      The standard for assessing credibility

is set forth in the REAL ID Act, which provides as follows:

      Considering the totality of the circumstances, and all
      relevant factors, a trier of fact 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, the consistency of such statements with other
      evidence of record . . . and any inaccuracies or
      falsehoods in such statements, without regard to whether
      an inconsistency, inaccuracy, or falsehood goes to the
      heart of the applicant’s claim, or any other relevant
      factor.

      8 U.S.C. § 1158(b)(1)(B)(iii). “[A]lthough IJs may rely

on non-material omissions and inconsistencies, . . . [a]

trivial inconsistency or omission that has no tendency to

suggest a petitioner fabricated his or her claim will not

support an adverse credibility determination.”       Hong Fei Gao

v. Sessions, 891 F.3d 67, 77 (2d Cir. 2018).       “We defer

. . . to an IJ’s credibility determination unless . . . it is

plain that no reasonable fact-finder could make such an

adverse credibility ruling.”     Xiu Xia Lin, 534 F.3d at 167.

The   adverse   credibility   determination   is   supported   by

substantial evidence.
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       The agency reasonably relied on discrepancies between

Yao’s testimony and his written statement.                           See 8 U.S.C.

§ 1158(b)(1)(B)(iii).             Yao     testified      to   two     visits   from

neighborhood family planning officials and one visit from the

city family planning officials, but his written statement

described     only        a    single     visit    from       the    neighborhood

officials.      The agency was not required to credit Yao’s

position that his written statement implied a separate visit

from    the   city   officials          because    the    statement     does   not

actually identify such a visit.                See Majidi v. Gonzales, 430

F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than

offer a plausible explanation for his inconsistent statements

to secure relief; he must demonstrate that a reasonable fact-

finder    would      be       compelled       to   credit      his    testimony.”

(quotation marks omitted) (quoting Zhang v. INS, 386 F.3d 66,

76 (2d Cir. 2004)); see also Siewe v. Gonzales, 480 F.3d 160,

167 (2d Cir. 2007) (“Where there are two permissible views of

the evidence, the factfinder’s choice between them cannot be

clearly erroneous.” (quoting Anderson v. Bessemer City, 470

U.S. 564, 574 (1985))).             In addition, while Yao’s written

statement alleged that his wife was sterilized after an
                                          4
abortion, he testified only that she was forced to have an

intrauterine device (“IUD”) after the abortion.             The agency

reasonably rejected Yao’s explanation that he did not know

the difference between an IUD and sterilization because his

written statement distinguished between them.              See Majidi,

430 F.3d at 80.

     Yao also conceded that he provided false employment

information to U.S. officials when obtaining his visa and

that he repeated the false information to the attorneys

preparing his asylum application.         While we have acknowledged

that an alien’s false statements “to escape immediate danger

or   imminent   prosecution”     should   not   support    an   adverse

credibility     ruling,   that   exception    does   not   apply   here

because Yao did not leave China until over a decade after his

wife’s abortion (with no intervening harm) and because he

then repeated the false information on his asylum application

after he was safely in the United States.            See Rui Ying Lin

v. Gonzales, 445 F.3d 127, 133 (2d Cir. 2006); see also Siewe,

480 F.3d at 170-71.

     The IJ’s negative demeanor finding, which was based in

part on Yao’s lack of candor and responsiveness regarding his
                                  5
employment history, further supports the adverse credibility

ruling.     8 U.S.C. § 1158(b)(1)(B)(iii); Jin Chen v. U.S.

Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005) (giving

“particular deference” to credibility findings based on an

applicant’s demeanor).

    Finally, the agency also reasonably concluded that Yao’s

corroborating evidence did not rehabilitate his testimony.

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

(“An applicant’s failure to corroborate . . . 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.”).          The IJ

reasonably gave little weight to the unsworn letters from

China.    See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013).

Moreover, the letters were short and lacked detail, and Yao’s

wife’s letter did not confirm the alleged abortion.     See Xiu

Xia Lin, 534 F.3d at 166-67 (upholding agency’s reliance on

omissions in letters submitted to corroborate claim).

    The     above   discrepancies   and   lack   of   reliable

corroboration provide substantial evidence for the adverse

credibility ruling.    See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
                               6
Xia Lin, 534 F.3d at 166-67.       Because Yao’s claims were all

based on the same factual predicate, the adverse credibility

determination   is   dispositive    of   asylum,   withholding   of

removal, and CAT relief.     Paul v. Gonzales, 444 F.3d 148,

156-57 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, Yao’s pending

motion for a stay of removal in this petition is DISMISSED as

moot.

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




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