     16-3758
     Tang v. Sessions
                                                                                   BIA
                                                                                Hom, IJ
                                                                           A200 168 577
                             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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 17th day of September, two thousand
 5   eighteen.
 6
 7   PRESENT:
 8            JOHN M. WALKER, JR.,
 9            REENA RAGGI,
10            DENNY CHIN,
11                 Circuit Judges.
12   _____________________________________
13   YING TANG,
14            Petitioner,
15
16                      v.                                       16-3758
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Charles Christophe, New York, NY.
24
25   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
26                                      Attorney General; Carl McIntyre,
27                                      Assistant Director; Kevin J.
28                                      Conway, Trial Attorney, Office of
29                                      Immigration Litigation, United
30                                      States Department of Justice,
31                                      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     Ying   Tang,   a   native   and   citizen      of   the

6    People’s Republic of China, seeks review of a BIA decision

7    affirming an Immigration Judge’s (“IJ”) denial of Tang’s

8    application for asylum, withholding of removal, and relief

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

10   Tang, No. A200 168 577 (B.I.A. Oct. 7, 2016), aff’g No. A200

11   168 577 (Immig. Ct. N.Y. City May 20, 2015).                     Under the

12   circumstances of this case, we review both the IJ’s and the

13   BIA’s opinions “for the sake of completeness,” Wangchuck v.

14   Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006), and

15   address only the adverse credibility determination, applying

16   well-established      standards        of   review,       see     8 U.S.C.

17   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

18   66   (2d     Cir.    2008)    (reviewing        adverse     credibility

19   determination for substantial evidence).              In doing so, we

20   assume the parties’ familiarity with the underlying facts and

21   procedural history in this case.




                                        2
1          For applications such as Tang’s, governed by the REAL ID

2    Act of 2005, the agency may, “considering the totality of the

3    circumstances,” base a credibility finding on an applicant’s

4    “demeanor,       candor,       or   responsiveness,”         as    well    as

5    inconsistencies in her statements and other record evidence

6    “without regard to whether” those inconsistencies go “to the

7    heart      of      the         applicant’s       claim.”            8 U.S.C.

8    § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 163-64.

9    “We defer . . . to an IJ’s credibility determination unless,

10   from the totality of the circumstances, it is plain that no

11   reasonable fact-finder could make such an adverse credibility

12   ruling.”    Xiu Xia Lin, 534 F.3d at 167.            By these standards,

13   substantial evidence supports the agency’s determination that

14   Tang was not credible as to her claim that Chinese family

15   planning officials ordered her to terminate a pregnancy and

16   attempted forcibly to sterilize her for violating China’s

17   family planning policy.

18         First, the agency reasonably relied in part on Tang’s

19   demeanor,    noting      that    she    became   nervous,    evasive,     and

20   unresponsive       on      cross-examination.               See     8 U.S.C.

21   § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d

22   77,   81   n.1   (2d    Cir.    2005)    (recognizing      that   particular


                                             3
1    deference is given to the trier of fact’s assessment of

2    demeanor).    That finding is supported by the record.

3        Second, the demeanor finding and the adverse credibility

4    determination are bolstered by record inconsistencies.                See

5    Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d

6    Cir. 2006).     The agency reasonably found Tang’s interview

7    statement that her husband had informed her that she had been

8    ordered to report for an abortion inconsistent with her

9    hearing testimony that family planning officials had come to

10   her home to inform her directly of that reporting obligation.

11   See Xiu Xia Lin, 534 F.3d at 165-67; see also Diallo v.

12   Gonzales, 445 F.3d 624, 632 (2d Cir. 2006).            The agency also

13   reasonably noted evidentiary inconsistencies regarding the

14   reasons   family    planning     officials    purportedly     gave   for

15   targeting     her    for    an      abortion.           See    8 U.S.C.

16   § 1158(b)(1)(B)(iii).       Tang       did   not   provide    compelling

17   explanations for these inconsistencies.            See Majidi, 430 F.3d

18   at 80 (“A petitioner must do more than offer a plausible

19   explanation   for   [her]   inconsistent       statements     to   secure

20   relief; [s]he must demonstrate that a reasonable fact-finder

21   would be compelled to credit [her] testimony.” (internal

22   quotation marks omitted)).


                                        4
1         Finally,      having   questioned    Tang’s    credibility,    the

2    agency reasonably relied on her failure to rehabilitate her

3    credibility with corroborating evidence.             See Biao Yang v.

4    Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).            The agency did

5    not err in declining to credit Tang’s husband’s letter because

6    it was unsworn and her husband was an interested party who

7    was not available for cross-examination.           See Y.C. v. Holder,

8    741 F.3d 324, 334 (2d Cir. 2013).

9         Given these demeanor and inconsistency findings, as well

10   as   the    lack    of   corroboration,     the     totality   of   the

11   circumstances      supports   the   agency’s      adverse   credibility

12   determination such that no reasonable factfinder would be

13   “compelled to conclude to the contrary.”             Majidi, 430 F.3d

14   at 79.     That determination is dispositive of Tang’s claims

15   for asylum, withholding of removal, and CAT relief because

16   all three claims are based on the same factual predicate.

17   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

18        For the foregoing reasons, the petition for review is

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

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

21




                                         5
1   and any pending motion for a stay of removal in this petition

2   is DISMISSED as moot.

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




                                 6
