     14-4409
     Ni v. Lynch
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A093 339 682
                        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   2nd day of February, two thousand sixteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            GERARD E. LYNCH,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   HUI RONG NI,
14            Petitioner,
15
16                 v.                                                14-4409
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Ramesh K. Shrestha, New York, New
24                                       York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Douglas
28                                       E. Ginsburg, Assistant Director;
29                                       Deitz P. Lefort, Trial Attorney,
1                                Office of Immigration Litigation,
2                                United States Department of Justice,
3                                Washington, D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

7    ORDERED, ADJUDGED, AND DECREED that the petition for review is

8    DENIED.

9        Petitioner Hui Rong Ni, a native and citizen of the People’s

10   Republic of China, seeks review of an October 31, 2014, decision

11   of the BIA affirming a March 20, 2013, decision of an Immigration

12   Judge (“IJ”) denying Ni’s application for asylum, withholding

13   of removal, and relief under the Convention Against Torture

14   (“CAT”).    In re Hui Rong Ni, No. A093 339 682 (B.I.A. Oct. 31,

15   2014), aff’g No. A093 339 682 (Immig. Ct. N.Y. City Mar. 20,

16   2013).    We assume the parties’ familiarity with the underlying

17   facts and procedural history in this case.

18       Under the circumstances of this case, we have reviewed the

19   IJ’s decision “as modified by the BIA’s decision,” i.e., minus

20   the basis for denying relief that the BIA declined to consider

21   (the untimely filing of the asylum application).    See Xue Hong

22   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

23   The applicable standards of review are well established.     See




                                     2
1    8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534

2    F.3d 162, 165-66 (2d Cir. 2008).

3        The    agency     may,    “[c]onsidering     the    totality    of   the

4    circumstances,” base a credibility finding on inconsistencies

5    in an asylum applicant’s statements and other record evidence

6    “without regard to whether” they go “to the heart of the

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

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

9    agency’s determination that Ni was not credible.

10       As     an    initial    matter,   contrary   to     the   Government’s

11   contention, we consider Ni’s challenges to the agency’s adverse

12   credibility determination exhausted because they were raised

13   below, or are “subsidiary legal arguments, or arguments by

14   extension,” of those arguments raised below.             Gill v. INS, 420

15   F.3d 82, 86 (2d Cir. 2005).           The agency reasonably relied on

16   the inconsistency between Ni’s testimony and her husband’s

17   affidavit regarding whether her husband was present when family

18   planning        officials    allegedly    took    her    for    a   forced

19   sterilization.       See Xiu Xia Lin, 534 F.3d at 166-67.                Ni’s

20   explanations that she was estranged from her husband and had

21   not read his affidavit were not compelling given that his

22   affidavit was the only evidence she presented to corroborate


                                           3
1    that her sterilization was forced.   See Majidi v. Gonzales, 430

2    F.3d 77, 80-81 (2d Cir. 2005).

3         Ni argues that the agency erred in relying on her husband’s

4    affidavit because the IJ did not admit it into evidence and found

5    it “worthless” on the issue of whether her asylum application

6    was timely.   However, it was in the IJ’s discretion to permit

7    cross-examination of Ni based on the affidavit, which was

8    submitted by Ni and marked for identification, and to consider

9    Ni’s responses in assessing credibility.    See Xiao Ji Chen v.

10   U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006); Singh

11   v. Bd. of Immigration Appeals, 236 F. App’x 704, 706 (2d Cir.

12   2007).   Moreover, the IJ’s determination that the affidavit was

13   “worthless” for purposes of establishing when Ni entered the

14   United States did not infect the IJ’s decision to rely on Ni’s

15   unpersuasive efforts to explain the inconsistencies between her

16   version of events and that contained in her husband’s affidavit

17   in connection with the sterilization claim.       The affidavit

18   indicates that Ni’s husband’s knowledge of her date of entry

19   was based on information Ni provided him while his statements

20   related to her alleged sterilization were based on firsthand

21   knowledge.




                                    4
1        Ni’s reliance on Bao v. Gonzales, 460 F.3d 426 (2d Cir.

2    2006), for the proposition that it was inappropriate to consider

3    her husband’s affidavit is misplaced.       In Bao, the IJ relied

4    on the independent asylum application of the petitioner’s

5    husband to find the petitioner not credible.         Id. at 431.

6    Here, Ni submitted her husband’s affidavit as part of her own

7    evidentiary materials, and there is no unfairness in relying

8    on inconsistencies between the affidavit and her testimony in

9    finding her not credible.

10       In finding Ni not credible, the IJ also reasonably relied

11   on inconsistencies in the record regarding her travel to and

12   within the United States.   See Xiu Xia Lin, 534 F.3d at 166-67

13   & n.3.   Ni’s explanations for these inconsistencies were not

14   compelling.   See Majidi, 430 F.3d at 80-81.

15       Having found Ni not credible, the agency reasonably

16   determined    that   Ni’s   corroborating    evidence   did   not

17   rehabilitate her testimony that her sterilization was forced.

18   See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

19   The IJ reasonably declined to give much weight to Ni’s

20   sterilization certificate, which was purportedly issued by a

21   Chinese family planning committee.     Putting to one side any

22   issue as to the authenticity of the document, neither the


                                     5
1    certificate nor a statement from Ni’s U.S.-based physician,

2    while supporting her claim that she was sterilized, has any

3    bearing on whether her sterilization was forced.

4        Ni also argues that the IJ erred in failing to grant her

5    an opportunity to correct deficiencies in her corroborating

6    evidence.    This argument lacks merit.   While we have held that

7    “where an IJ finds that corroborative evidence is required to

8    support the asylum petition, we demand that immigration judges

9    give refugee seekers an opportunity to address and, where

10   possible, rectify perceived deficiencies in their testimony,”

11   Ming Shi Xue v. Bd. of Immigration Appeals, 439 F.3d 111, 122

12   (2d Cir. 2006), this rule does not apply where the need for

13   corroborating evidence is based on an adverse credibility

14   finding.    See Balachova v. Mukasey, 547 F.3d 374, 382 n.5 (2d

15   Cir. 2008); Jingzhi Jin v. Holder, 481 F. App’x 640, 641 (2d

16   Cir. 2012).

17       Ultimately,      the    agency’s      adverse     credibility

18   determination is supported by substantial evidence.           See

19   8 U.S.C. § 1158(b)(1)(B)(iii).      That finding is dispositive of

20   asylum, withholding of removal, and CAT relief because all three

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

22   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).


                                     6
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                             FOR THE COURT:
4                             Catherine O=Hagan Wolfe, Clerk




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