     18-3000
     Yang v. Barr
                                                                                   BIA
                                                                                Hom, IJ
                                                                           A206 570 476

                         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 18th day of August, two thousand twenty.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RICHARD J. SULLIVAN,
10            STEVEN J. MENASHI,
11                 Circuit Judges.
12   _____________________________________
13
14   JIE YANG,
15                  Petitioner,
16
17                  v.                                           18-3000
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                  Dehai Zhang, Flushing, NY.
25
26   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
27                                    Attorney General; Claire L.
28                                    Workman, Senior Litigation
29                                    Counsel; Rosanne M. Perry, Trial
30                                    Attorney, Office of Immigration
31                                    Litigation, United States
 1                                    Department of Justice, Washington,
 2                                    DC.
 3
 4       UPON DUE CONSIDERATION of this petition for review of a

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

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

 7   is DENIED.

 8       Petitioner Jie Yang, a native and citizen of the People’s

 9   Republic of China, seeks review of a September 28, 2018

10   decision of the BIA affirming an October 2, 2017 decision of

11   an Immigration Judge (“IJ”) denying Yang’s application for

12   asylum,     withholding     of    removal,       and   relief    under   the

13   Convention Against Torture (“CAT”).              In re Jie Yang, No. A206

14   570 476 (B.I.A. Sep. 28, 2018), aff’g No. A206 570 476 (Immig.

15   Ct. N.Y.C. Oct. 2, 2017).         We assume the parties’ familiarity

16   with the underlying facts and procedural history.

17       Under the circumstances of this case, we have reviewed

18   the decision of the IJ as supplemented by the BIA.                  See Yan

19   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).                      “We

20   review    the    agency’s   factual       findings,    including    adverse

21   credibility       findings,      under     the     substantial     evidence

22   standard,       which   requires     that     they     be   supported     by

23   reasonable, substantial[,] and probative evidence in the

24   record when considered as a whole.”              Hong Fei Gao v. Sessions,

                                           2
 1   891 F.3d 67, 76 (2d Cir. 2018) (internal quotation marks

 2   omitted).    And we review the agency’s rulings establishing

 3   and enforcing filing deadlines for abuse of discretion.          See

 4   Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008).

 5   Adverse Credibility Determination

 6       “Considering the totality of the circumstances, and all

 7   relevant factors, a trier of fact may base a credibility

 8   determination on . . . the consistency between the applicant’s

 9   or witness’s written and oral statements . . . [and] the

10   internal consistency of each such statement . . . without

11   regard to whether an inconsistency, inaccuracy, or falsehood

12   goes to the heart of the applicant’s claim . . . .”       8 U.S.C.

13   § 1158(b)(1)(B)(iii).   “We defer . . . to an IJ’s credibility

14   determination unless, from the totality of the circumstances,

15   it is plain that no reasonable fact-finder could make such an

16   adverse credibility ruling.”          Xiu Xia Lin v. Mukasey, 534

17   F.3d 162, 167 (2d Cir. 2008); Hong Fei Gao, 891 F.3d at 76.

18   Substantial evidence supports the agency’s determination that

19   Yang was not credible as to her claim that family planning

20   officials forced her to terminate a pregnancy under China’s

21   family planning policy.

22       The     agency   reasonably       relied   on   a   series    of


                                       3
 1   inconsistencies between Yang’s testimony and other evidence.

 2   See 8 U.S.C. § 1158(b)(1)(B)(iii).               Yang asserted in her

 3   written   statement    that,      after   family     planning    officials

 4   pressured   her      with     social      security     and     educational

 5   restrictions, she “hopelessly” went to the hospital to obtain

 6   an abortion.    Certified Admin. Rec. at 177.               That statement

 7   was   inconsistent    with     her   later      testimony     that   family

 8   planning officials physically forced her from her home after

 9   an altercation and took her to the hospital to have an

10   abortion.   Additionally, Yang’s statement and testimony that

11   she had been pregnant twice and forced to have one abortion

12   was inconsistent with her medical records, which stated that

13   Yang had been pregnant five times, had given birth once, and

14   had three abortions.        The agency also did not err in relying

15   on Yang’s failure to mention in her written statement that

16   her husband was at their home when the family planning

17   officials forcibly removed her, that he had engaged in a

18   physical altercation with the officials while pleading with

19   them not to take her, and that he accompanied her to the

20   hospital.      See   Hong   Fei   Gao,    891   F.3d   at    78–79   (“[I]n

21   assessing the probative value of the omission of certain

22   facts, an IJ should consider whether those facts are ones


                                          4
 1   that    a   credible    petitioner       would   reasonably   have     been

 2   expected to disclose under the relevant circumstances.”).

 3   Yang could not compellingly explain these inconsistencies and

 4   omissions.    See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

5    2005) (“A petitioner must do more than offer a plausible

6    explanation    for     h[er]   inconsistent      statements   to     secure

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

8    would be compelled to credit h[er] testimony.” (internal

9    quotation marks omitted)); see also Likai Gao v. Barr, No. 18-

10   358, 2020 WL 4290009, at *4 n.8 (2d Cir. July 28, 2020)

11   (“[E]ven a single inconsistency might preclude an alien from

12   showing that an IJ was compelled to find h[er] credible.

13   Multiple     inconsistencies      would     so    preclude    even    more

14   forcefully.”).

15          Having questioned her credibility, the IJ reasonably

16   relied on Yang’s failure to rehabilitate her testimony with

17   reliable corroborating evidence.           See Biao Yang v. Gonzales,

18   496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to

19   corroborate his or her testimony may bear on credibility,

20   because the absence of corroboration in general makes an

21   applicant unable to rehabilitate testimony that has already

22   been called into question.”).              As the IJ concluded, Yang


                                          5
1    failed to timely submit any evidence corroborating her claim

2    that she was forced to undergo an abortion.

3            Given    the   inconsistency        and   lack     of     corroboration

4    findings, the adverse credibility determination is supported

5    by substantial evidence.         See Xiu Xia Lin, 534 F.3d at 165–

6    66.     That determination is dispositive of asylum, withholding

7    of removal, and CAT relief because all three claims are based

8    on the same factual predicate.                See Paul v. Gonzales, 444

9    F.3d 148, 156–57 (2d Cir. 2006).

10   Late-Filed Evidence

11           The IJ did not abuse his discretion or prejudice Yang by

12   declining to admit her late-filed evidence.                       “[A]n IJ has

13   broad discretion to set and extend filing deadlines,” Dedji,

14   525 F.3d at 191, and when “an application or document is not

15   filed within the time set by the [IJ], the opportunity to

16   file that application or document shall be deemed waived,”

17   8 C.F.R.        § 1003.31(c).    An     IJ    abuses     his    discretion    in

18   setting      and    enforcing   deadlines         for    the    submission    of

19   evidence “when ‘(1) his decision rests on an error of law .

20   .   .   or   a    clearly   erroneous       factual     finding    or   (2)   his

21   decision—though not necessarily the product of a legal error

22   or a clearly erroneous factual finding—cannot be located


                                             6
 1   within the range of permissible decisions.’”   Dedji 525 F.3d

 2   at 191–92 (quoting Morgan v. Gonzales, 445 F.3d 549, 551–52

 3   (2d Cir. 2006)).

 4       The IJ gave Yang more than two years and eight months to

 5   procure and submit supporting documentation.   Indeed, the IJ

 6   gave Yang proper notice of the submission deadline at a July

 7   2014 hearing at which Yang was present and represented by

 8   counsel.   Additionally, the late-filed evidence was available

 9   or obtainable prior to the deadline and thus could have been

10   timely filed.   Contrary to Yang’s argument, the IJ considered

11   whether her substitution of counsel was good cause for the

12   delay in submitting her documents and reasonably declined to

13   find good cause because she had more than two years to submit

14   evidence before the deadline and her subsequent substitution

15   of counsel.     The IJ further reasonably explained that the

16   deadlines were required to manage the increasing caseload and

17   large volume of document submissions in Immigration Court in

18   an efficient and equitable manner.    Accordingly, we find no

19   abuse of discretion in the IJ’s decision declining to admit

20   Yang’s late-filed evidence.

21       Nor was Yang prejudiced by the IJ’s refusal to admit the

22   late-filed documents.   Cf. Dedji, 525 F.3d at 192–93 (finding


                                   7
 1   prejudice where the inconsistencies “could have been resolved

 2   in [petitioner’s] favor” had the evidence been admitted).   As

 3   the IJ found, this evidence either did not address the record

 4   inconsistencies or created new inconsistencies that would

 5   have further impugned Yang’s credibility. 1   Accordingly, Yang

 6   was not prejudiced by the IJ’s refusal to admit the documents.

 7       For the foregoing reasons, the petition for review is

 8   DENIED.   All pending motions and applications are DENIED and

9    stays VACATED.

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




     1 We note that the IJ admitted Yang’s medical records into
     evidence, despite their untimely submission, because of the
     “considerable testimony and references made by the parties to
     the document.” Certified Admin. Rec. at 51. These records
     form the basis of the inconsistency noted above regarding the
     number of times that Yang had been pregnant.
                                   8
