     16-2558
     Jiang v. Sessions
                                                                                          BIA
                                                                                      Hom, IJ
                                                                            A206 565 575 / 576

                              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   13th day of October, two thousand seventeen.
 5
 6   PRESENT: JOSÉ A. CABRANES,
 7            RAYMOND J. LOHIER, JR.,
 8            SUSAN L. CARNEY,
 9                 Circuit Judges.
10   _____________________________________
11
12   JINMEI JIANG, BINGBING TANG,
13            Petitioners,
14
15                       v.                                          16-2558
16                                                                   NAC
17   JEFFERSON B. SESSIONS III,
18   UNITED STATES ATTORNEY GENERAL,
19            Respondent.
20   _____________________________________
21
22   FOR PETITIONERS:                    Zhen Liang Li, New York, NY.
23
24   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
25                                       Attorney General, Civil Division,
26                                       Jeffery R. Leist, Senior Litigation
27                                       Counsel, Aric A. Anderson, Trial
28                                       Attorney, Office of Immigration
29                                       Litigation, United States
30                                       Department of Justice, Washington,
31                                       DC.
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 is

4    DENIED.

5        Petitioners Jinmei Jiang and Bingbing Tang, natives and

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

7    June 23, 2016 decision of the BIA affirming a January 28, 2015

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

9    application for asylum, withholding of removal, and relief

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

11   Jiang, Bingbing Tang, Nos. A206 565 575/576 (B.I.A. June 23,

12   2016), aff’g Nos. A206 565 575/576 (Immig. Ct. N.Y. City Jan.

13   28, 2015).      We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case, we have reviewed both

16   the IJ’s and the BIA’s opinions “for the sake of completeness.”

17   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

18   2006).    The applicable standards of review are well

19   established.    See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

20   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).        The agency may,

21   “[c]onsidering the totality of the circumstances,” base a
                                        2
1    credibility finding on inconsistencies in an applicant’s

2    statements and other record evidence “without regard to

3    whether” those inconsistencies go “to the heart of the

4    applicant’s claim.”    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

5    Lin, 534 F.3d at 163-64.    Substantial evidence supports the

6    agency’s determination that Jiang was not credible.

7        First, the agency reasonably determined that Jiang

8    undermined her own credibility by omitting from her asylum

9    interview and written statement any mention of the bribe her

10   mother-in-law paid to a doctor.    See 8 U.S.C.

11   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166-67.    Jiang

12   testified that after her IUD was removed, her mother-in-law paid

13   a doctor to cover up the removal at Jiang’s gynecological

14   checkups.    Jiang argues that her failure to mention the bribe

15   at her asylum interview should not count against her because

16   her interviewer wrongly assumed that Jiang stopped attending

17   her checkups.    Jiang’s argument ignores the interviewer’s

18   subsequent question about how Jiang was able to hide her IUD

19   removal.    Jiang further argues that her omission of the bribe

20   from her written statement was insignificant because the bribe

21   does not relate to the discovery of her unauthorized pregnancy
                                    3
1    in September 2012.    But Jiang’s claim of persecution rests on

2    China’s coercive birth control policies, of which IUD use is

3    a strictly enforced component, so her evasion of those policies

4    does relate to her credibility.     See Xian Tuan Ye v. Dep’t of

5    Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding that

6    “a material inconsistency in an aspect of [the applicant]’s

7    story that served as an example of the very persecution from

8    which he sought asylum” affords “substantial evidence to

9    support the adverse credibility finding” (internal quotations

10   omitted)).

11       The agency also reasonably relied on inconsistencies in

12   Jiang’s testimony about the availability of her medical records

13   and whether she moved to a new home after she discovered her

14   second pregnancy.    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

15   534 F.3d at 166–67.    Jiang was unable to explain why she was

16   able to obtain medical records for her IUD insertion and

17   abortion, but not for the complications she suffered after the

18   abortion.    In addition, Jiang testified inconsistently about

19   whether she moved during her second pregnancy, calling into

20   question her statements that she and her husband had reason to

21   avoid detection.
                                     4
1        Nor did the agency err in concluding that Jiang failed to

2    rehabilitate her non-credible testimony with her documentary

3    evidence.     Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.

4    2007) (“An applicant’s failure to corroborate his or her

5    testimony may bear on credibility, because the absence of

6    corroboration in general makes an applicant unable to

7    rehabilitate testimony that has already been called into

8    question.”).    The agency reasonably gave little weight to

9    Jiang’s husband’s letter because he was not subject to

10   cross-examination, and to Jiang’s mother-in-law’s letter

11   because it was not made under oath and omitted any mention of

12   the bribes.    See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

13   315, 342 (2d Cir. 2006) (holding that weight afforded to

14   applicant’s evidence in immigration proceedings lies largely

15   within agency discretion); see also Y.C. v. Holder, 741 F.3d

16   324, 334 (2d Cir. 2013) (deferring to agency’s determination

17   that diminished weight be given to evidence “submitted by an

18   interested witness”).     The agency also reasonably gave

19   diminished weight to Jiang’s medical records because they were

20   not signed, attested, or certified, and she could not

21
                                      5
1    compellingly explain why only some records were available.

2    Xiao Ji Chen, 471 F.3d at 342; Y.C., 741 F.3d at 334.

3        The reliability of the abortion certificate depended on

4    Jiang’s credibility.   Because Jiang’s testimony had already

5    been called into question, the agency did not err in declining

6    to find the abortion certificate dispositive.   The BIA referred

7    to case law discussing the State Department’s observation that

8    there was no evidence that abortion certificates were provided

9    for involuntary abortions.   See Xiao Xing Ni v. Gonzales, 494

10   F.3d 260, 263 (2d Cir. 2007) (noting a “1998 State Department

11   Country Report which states that United States authorities are

12   unaware of any so-called abortion certificates and that the only

13   document that might resemble such a certificate . . . is a

14   document issued by hospitals upon a patient’s request after a

15   voluntary abortion” (internal quotation marks omitted)); Tu Lin

16   v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006) (same).    When a

17   State Department country report contradicts evidence or does

18   not rehabilitate the credibility of an asylum applicant whose

19   testimony has been found not credible, the agency does not abuse

20   its discretion in declining to credit the applicant’s evidence.

21   See Xiao Ji Chen, 471 F.3d at 342.
                                    6
1        Given the significant omissions and inconsistencies, the

2    agency’s adverse credibility determination is supported by

3    substantial evidence.    See Xiu Xia Lin, 534 F.3d at 165-66; Xian

4    Tuan Ye, 446 F.3d at 295.    That determination is dispositive

5    of Jiang’s application for asylum, withholding of removal, and

6    CAT relief because all three claims are based on the same factual

7    predicate.    See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

8    2006).

9        For the foregoing reasons, the petition for review is

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

11   that the Court previously granted in this petition is VACATED,

12   and any pending motion for a stay of removal in this petition

13   is DISMISSED as moot.    Any pending request for oral argument

14   in this petition is DENIED in accordance with Federal Rule of

15   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

16   34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk




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