         11-2799-ag                                                                   BIA
         Yang v. Holder                                                          Nelson, IJ
                                                                              A093 412 710



                           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 8th day of August, two thousand twelve.
 5
 6       PRESENT:
 7
 8                JOSÉ A. CABRANES,
 9                GERARD E. LYNCH,
10                CHRISTOPHER F. DRONEY,
11                        Circuit Judges.
12       _______________________________________
13
14       XIUQIN YANG,
15                Petitioner,
16
17                        v.                                   11-2799-ag
18                                                             NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Albert S. Lefkowitz, New York, New
25                                     York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Lyle D. Jentzer, Senior
 1                             Counsel; Daniel I. Smulow, Trial
 2                             Attorney, Office of Immigration
 3                             Litigation, United States Department
 4                             of Justice, Washington, D.C.
 5
 6          UPON DUE CONSIDERATION of this petition for review of a

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

 8   ORDERED, ADJUDGED, AND DECREED that the petition for review

 9   is DENIED.

10          Xiuqin Yang, a native and citizen of the People’s

11   Republic of China, seeks review of a June 15, 2011, order of

12   the BIA affirming the May 20, 2009, decision of an

13   Immigration Judge (“IJ”), which denied her application for

14   asylum, withholding of removal, and relief under the

15   Convention Against Torture (“CAT”).     In re Xiuqin Yang, No.

16   A093 412 710 (B.I.A. June 15, 2011), aff’g No. A093 412 710

17   (Immig. Ct. N.Y. City May 20, 2009).    We assume the parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

20          Under the circumstances of this case, we have reviewed

21   the decision of the IJ as modified and supplemented by the

22   BIA.    See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

23   2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

24   522 (2d Cir. 2005).    The applicable standards of review are

25   well-established.     See 8 U.S.C. § 1252(b)(4)(B); see also


                                     2
 1   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

 2   Because Yang does not challenge the IJ’s findings that she

 3   did not demonstrate a fear of future persecution or her

 4   eligibility for CAT relief, we consider only her past

 5   persecution claim and the agency’s adverse credibility

 6   determination.

 7          For applications such as Yang’s, governed by the

 8   amendments made to the Immigration and Nationality Act by

 9   the REAL ID Act of 2005, the agency may, considering the

10   totality of the circumstances, base a credibility finding on

11   the applicant’s “demeanor, candor, or responsiveness,” the

12   plausibility of his account, and inconsistencies in her

13   statements, without regard to whether they go “to the heart

14   of the applicant’s claim.”    See 8 U.S.C.

15   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534

16   F.3d 162, 167 (2d Cir. 2008).       We will “defer . . . to an

17   IJ’s credibility determination unless, from the totality of

18   the circumstances, it is plain that no reasonable fact-

19   finder could make” such a ruling.       Xiu Xia Lin, 534 F.3d at

20   167.       The IJ’s adverse credibility determination here is

21   supported by substantial evidence.       The IJ reasonably based

22   her credibility finding on inconsistencies within Yang’s


                                     3
 1   medical documentation and between the documentation and

 2   Yang’s testimony regarding whether Yang had been pregnant or

 3   had undergone a forcible abortion in China.     See 8 U.S.C.

 4   § 1158(b)(1)(B)(iii) (the agency may consider

 5   inconsistencies between the applicant’s oral statements with

 6   other evidence in the record in assessing credibility).

 7       Yang argues that the BIA failed to adequately consider

 8   her explanations that she had not understood the

 9   contradicting documents and did not know whether she had

10   been questioned about her abortion.   To the contrary, the

11   BIA explicitly considered her explanations and reasonably

12   rejected them given that Yang had not explained why her

13   previous health care providers would affirmatively and

14   repeatedly note that she did not have a pregnancy before

15   2003 or an abortion if she had not provided that

16   information.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

17   F.3d 315, 338 n.17 (2d Cir. 2006) (“[W]e presume that an IJ

18   has taken into account all of the evidence before him,

19   unless the record compellingly suggests otherwise.”); Majidi

20   v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (noting that

21   the agency need not credit an explanation for an

22   inconsistency unless those explanations would compel a


                                   4
 1   reasonable fact-finder to do so).   Given the inconsistencies

 2   between Yang’s documentary evidence and her testimony and

 3   within the documentary evidence itself, the totality of the

 4   circumstances supports the agency’s adverse credibility

 5   determination.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

 6   Lin, 534 F.3d at 167.

 7       For the foregoing reasons, the petition for review is

 8   DENIED.   As we have completed our review, the pending motion

 9   for a stay of removal in this petition is DISMISSED as moot.

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




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