     17-2455
     Zhao v. Barr
                                                                                   BIA
                                                                               Lamb, IJ
                                                                           A206 052 320
                         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
 2   for the Second Circuit, held at the Thurgood Marshall United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 20th day of November, two thousand nineteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            REENA RAGGI,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   QINGHONG ZHAO,
14            Petitioner,
15
16                  v.                                           17-2455
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Wei Gu, Albertson, NY.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; Carl H.
27                                    McIntyre, Assistant Director;
28                                    Justin R. Markel, Senior
29                                    Litigation Counsel, Office of
30                                    Immigration Litigation, United
31                                    States Department of Justice,
32                                    Washington, 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

4    is DENIED.

5        Petitioner Qinghong Zhao, a native and citizen of the

6    People’s Republic of China, seeks review of a July 13, 2017,

7    decision of the BIA affirming a November 7, 2016, decision of

8    an Immigration Judge (“IJ”) denying Zhao’s application for

9    asylum,    withholding   of   removal,   and   relief    under   the

10   Convention Against Torture (“CAT”).      In re Qinghong Zhao, No.

11   A 206 052 320 (B.I.A. July 13, 2017), aff’g No. A 206 052 320

12   (Immig. Ct. N.Y. City Nov. 7, 2016).      We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       We have reviewed the IJ’s decision as supplemented by

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

17   Cir. 2005).     The applicable standards of review are well

18   established.    See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.

19   Sessions, 891 F.3d 67, 76–77 (2d Cir. 2018).            In making a

20   credibility determination, the agency must “[c]onsider[] the

21   totality of the circumstances” and may base a finding on the

22   applicant’s “demeanor, candor, or responsiveness . . . , the

                                      2
1    inherent plausibility of the applicant’s . . . account,”

2    inconsistencies in the applicant’s statements or between her

3    statements and other evidence, “without regard to whether an

4    inconsistency, inaccuracy, or falsehood goes to the heart of

5    the    applicant’s      claim,       or    any     other     relevant     factor.”

6    8 U.S.C. § 1158(b)(1)(B)(iii).                   “We defer . . . to an IJ’s

7    credibility determination unless, from the totality of the

8    circumstances, it is plain that no reasonable fact-finder

9    could make such an adverse credibility ruling.”                        Xiu Xia Lin

10   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei

11   Gao,    891   F.3d     at    76.      As    discussed       below,     substantial

12   evidence supports the adverse credibility determination.

13   Inconsistencies

14          The IJ reasonably relied on inconsistencies in Zhao’s

15   testimony      and     between       her       testimony,     application,    and

16   documentary evidence.          See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

17   Xia    Lin,    534    F.3d    at     163–64,       166–67.       Zhao’s     asylum

18   application         represented      that       family      planning     officials

19   visited her once and she immediately confessed that she was

20   pregnant      and    begged    for    mercy.       But   Zhao   testified     that

21   officials came to her house several times before her abortion,

22   suggested that a private clinic may have alerted officials

                                                3
1    about her pregnancy, and omitted mention of her confession

2    and plea for mercy.       Zhao had no explanation for these

3    discrepancies, so the agency was permitted to rely on them.

4    See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005); see

5    also Xiu Xia Lin, 534 F.3d at 167.

6          Zhao argues the IJ failed to apportion enough weight to

7    her   documentary   evidence.     However,   her   evidence   mainly

8    consisted of letters from relatives in China, which the agency

9    is not required to credit.      See Y.C. v. Holder, 741 F.3d 324,

10   334 (2d Cir. 2013) (deferring to agency’s decision to afford

11   little weight to relative’s letter from China because it was

12   unsworn and from an interested witness); Matter of H-L-H- &

13   Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding

14   letters from alien’s friends and family insufficient support

15   because they were from interested witnesses not subject to

16   cross-examination), overruled on other grounds by Hui Lin

17   Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012).

18         Nor did the agency err in discounting the abortion

19   certificate Zhao submitted because it undermined rather than

20   rehabilitated her credibility.       The certificate, issued by a

21   hospital in China, stated that Zhao underwent an “abortion

22   operation” on October 25, 2012.      But Zhao testified that she

                                      4
1    did not receive any medical documents related to the abortion,

2    she did not recognize the certificate or know its contents

3    when confronted with it, and she could not explain why she

4    presented a copy and not the original.                         The IJ was not

5    required to accept Zhao’s self-serving statement that she was

6    truthful as it did not resolve her lack of familiarity with

7    her own evidence.      Majidi, 430 F.3d at 80.                 Zhao attempts to

8    explain that she suffered a “memory lapse” not uncommon among

9    trauma victims and posits that she might have “thr[own] [the

10   abortion certificate] in a pile of papers and never looked at

11   it.”    Even if such an explanation were plausible, we decline

12   to attempt to reconcile Zhao’s inconsistent statements after

13   the fact.      See Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 77

14   (2d Cir. 2004), overruled on other grounds by Shi Liang Lin

15   v. U.S. Dep’t of Justice, 494 F.3d 297, 305 (2d Cir. 2007).

16          The   agency   did   not     err       in    finding   that     the      record

17   undermined Zhao’s claim that her abortion was forced rather

18   than voluntary, as she did not hide or attempt to evade

19   authorities despite testifying to several visits from family

20   planning     officials      prior    to        the       abortion.         8    U.S.C.

21   § 1158(b)(1)(B)(iii) (agency may rely on “any other relevant

22   factor”).       Moreover,      as     the          BIA    noted,     the       abortion

                                               5
1    certificate from China undermined, rather than bolstered, her

2    claim    because    China    issues       “abortion    certificates”     for

3    voluntary abortions—not forced abortions—so that individuals

4    who have undergone voluntary abortions may obtain government

5    benefits.     See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 263

6    (2d Cir. 2007); Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d

7    Cir. 2006).

8           Finally, Zhao waives any challenge to the IJ’s demeanor

9    finding, to which we defer, particularly where, as here, the

10   record supports the finding.          See Yueqing Zhang v. Gonzales,

11   426 F.3d 540, 545 n.7 (2d Cir. 2005) (providing that issues

12   not raised in an opening brief are waived); Jin Chen v. U.S.

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

14   “particular deference to credibility determinations that are

15   based on the adjudicator’s observation of the applicant’s

16   demeanor, in recognition of the fact that the IJ’s ability to

17   observe . . . demeanor places her in the best position to

18   evaluate [] apparent problems in the witness’s testimony”).

19          Given the inconsistency, omission, corroboration, and

20   demeanor findings, the totality of the circumstances supports

21   the adverse credibility determination.                See Xiu Xia Lin, 534

22   F.3d    at   167.   The     adverse   credibility        determination   is

                                           6
1    dispositive of asylum, withholding of removal, and CAT relief

2    because all three forms of relief are based on the same

3    discredited factual predicate.     See Paul v. Gonzales, 444

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

5        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

12   34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe,
15                                 Clerk of Court
16




                                    7
