    11-2114                                                                         BIA
    Han v. Holder                                                              Nelson, IJ
                                                                            A089 262 894



                         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.

         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 14th day of May, two thousand thirteen.

    PRESENT:
             ROSEMARY S. POOLER,
             RICHARD C. WESLEY,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    YOU HUA HAN,
             Petitioner,

                    v.                                    11-2114
                                                          NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Gary J. Yerman, New York, N.Y.

    FOR RESPONDENT:               Tony West, Assistant Attorney General;
                                  Stephen J. Flynn, Assistant Director;
                                  Jeffrey R. Meyer, Attorney, Office of
                                  Immigration Litigation, United States
                                  Department of Justice, Washington, D.C.
    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 You Hua Han, a native and citizen of the

People’s Republic of China, seeks review of an April 26, 2011,

decision of the BIA affirming the March 26, 2009, decision of

Immigration Judge (“IJ”) Barbara A. Nelson denying her

application for asylum, withholding of removal, and relief

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

Han, No. A089 262 894 (B.I.A. Apr. 26, 2011), aff’g No. A089

262 894 (Immig. Ct. N.Y. City Mar. 26, 2009).   We assume the

parties’ familiarity with the underlying facts and procedural

history of the case.

    Under the circumstances of this case, we have reviewed

both the IJ’s and the BIA’s opinions.    See Jigme Wangchuck v.

DHS, 448 F.3d 524, 528 (2d Cir. 2006).   The applicable

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

§ 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

162, 165-66 (2d Cir. 2008).

    Substantial evidence supports the agency’s determination

that Han did not testify credibly regarding her claim that she


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had been forced to undergo an abortion in 2001.        For asylum

applications, like Han’s, governed by the REAL ID Act, the

agency may, considering the totality of the circumstances,

base a credibility finding on an asylum applicant’s demeanor,

the plausibility of her account, and inconsistencies in her or

her witness’s statements, without regard to whether they go

“to the heart of [her] claim.”       8 U.S.C. § 1158(b)(1)(B)(iii);

Xiu Xia Lin, 534 F.3d at 163-64.       The agency reasonably relied

on inconsistencies in the record.       See 8 U.S.C.

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

64, 166-67.     The agency noted that Han’s direct testimony and

her husband’s letter were inconsistent with the testimony of

Han’s physician, Dr. Steven S. Ho, regarding the dates and

number of abortions Han had undergone.       The agency also

correctly observed that Han’s testimony on cross examination

contradicted her direct testimony regarding the number of

abortions.     When confronted with this inconsistency, Han

testified that she could not recall how many abortions she had

undergone.     The IJ reasonably declined to credit that

explanation.     See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

Cir. 2005) (finding that an agency need not credit an

applicant’s explanations unless those explanations would


                                 3
compel a reasonable fact-finder to do so).      The agency also

reasonably relied on Han’s admission that she had lied to a

United States consular officer in order to obtain the visa

that allowed her to enter the United States to determine that

Han was not credible.    See Rui Ying Lin v. Gonzales, 445 F.3d

127, 133 (2d Cir. 2006) (discussing the maxim of falsus in

uno, falsus in omnibus (false in one thing, false in

everything)); Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.

2007) (relying on the maxim to find that once an IJ concludes

that a document is false, he or she is “free to deem suspect

other documents (and to disbelieve other testimony) that

depend for probative weight upon [the applicant’s] veracity”).

       The adverse credibility determination is further

bolstered by the IJ’s demeanor finding.      Although Han argues

that the IJ’s observation of her demeanor is not supported by

the record, we give particular deference to the trier of

fact’s assessment of demeanor.       See Majidi, 430 F.3d at 81

n.1.    In finding Han not credible, the IJ reasonably relied in

part on her demeanor, noting that Han was “hesitant and

unresponsive” during portions of her testimony.      Because the

IJ was in the best position to observe Han’s manner while

testifying, her partial demeanor finding should be afforded


                                 4
particular deference.   See Zhou Yun Zhang v. INS, 386 F.3d 66,

73-74 (2d Cir. 2004), overruled on other grounds by Shi Liang

Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).

    Han further argues that the agency erred in relying on

Dr. Ho’s testimony because it was hearsay, as he was reading

from her medical records.   As we previously have determined,

“the Federal Rules of Evidence do not apply in removal

proceedings; rather, ‘[e]vidence is admissible provided that

it does not violate the alien’s right to due process of law.’”

Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008) (quoting

Zhen Nan Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 268 (2d

Cir. 2006)).   The record reflects that Han was afforded due

process as her counsel was given the opportunity to question

Dr. Ho, and asked him about his practice with respect to

obtaining his patients’ medical histories.

    Given the inconsistencies in the record and the deference

due to the IJ’s demeanor finding, the IJ’s adverse credibility

determination regarding Han’s claim that she suffered past

persecution was supported by substantial evidence.   See

8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d

at 167 (explaining that this Court “defer[s] . . . to an IJ’s

credibility determination unless, from the totality of the


                               5
circumstances, it is plain that no reasonable fact-finder

could make such an adverse credibility ruling”).   Because Han

did not testify credibly regarding her past persecution, she

is not entitled to the presumption that she faces future

persecution in China.   See 8 C.F.R. §§ 1208.13(b)(1),

1208.16(b)(1).   Accordingly, the agency did not err in denying

asylum, withholding of removal, and CAT relief as all of the

claims were based on the same factual predicate.   See Paul v.

Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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