         13-3604
         Ren v. Lynch
                                                                                        BIA
                                                                                  Nelson, IJ
                                                                               A088 533 475
                                                                               A088 533 476
                         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 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 25th day of November, two thousand fifteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                PETER W. HALL,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       XIAOMEI REN, SHAOYONG ZHAO,
14                Petitioners,
15
16                      v.                                      13-3604
17                                                              NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONERS:              Xiaomei Ren, pro se, Flushing, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Ernesto H. Molina, Jr.,
27                                     Assistant Director; Bernard A.
28                                     Joseph, Trial Attorney, Office of
29                                     Immigration Litigation, United
 1                           States Department of Justice,
 2                           Washington, D.C.
 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       Xiaomei Ren and Shaoyong Zhao, natives and citizens of

 9   China, seek review of a August 26, 2013, decision of the BIA

10   affirming the March 9, 2011, decision of an Immigration

11   Judge (“IJ”) denying asylum, withholding of removal, and CAT

12   relief.   In re Xiaomei Ren, Shaoyong Zhao, Nos. A088 533

13   475/476 (B.I.A. Aug. 26, 2013), aff’g Nos. A088 533 475/476

14   (Immig. Ct. N.Y. City Mar. 9, 2011).   We assume the parties’

15   familiarity with the underlying facts and procedural history

16   in this case.

17       Under the circumstances of this case, we have reviewed

18   the IJ’s decision as modified by the BIA.   Xue Hong Yang v.

19   U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); see

20   Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d

21   Cir. 2007) (explaining that we “consider only those issues

22   that formed the basis for [the BIA’s] decision.”).     The

23   applicable standards of review are well established.     See 8

24   U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d

25   162, 165-66 (2d Cir. 2008) (per curiam).

                                   2
 1       For asylum applications, like Ren’s, governed by the

 2   REAL ID Act, the agency may, “[c]onsidering the totality of

 3   the circumstances,” base a credibility finding on an asylum

 4   applicant’s “demeanor, candor, or responsiveness,” the

 5   plausibility of her account, and inconsistencies in her

 6   statements.   8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin,

 7   534 F.3d at 167.   “We defer therefore to an IJ’s credibility

 8   determination unless, from the totality of the

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

10   could make such an adverse credibility ruling.”     Xiu Xia

11   Lin, 534 F.3d at 167.

12       Ren fails to challenge with any specificity the

13   agency’s findings that her testimony was implausible, that

14   she lacked corroborating evidence, and that she failed to

15   sustain her burden of proof.    Rather, she argues ineffective

16   assistance of counsel, summarizes her claimed persecution,

17   and submits new evidence.    Under such circumstances we

18   generally would deem abandoned any challenge to the adverse

19   credibility determination; but we have reviewed it in light

20   of Ren’s pro se status.     See Yueqing Zhang v. Gonzales, 426

21   F.3d 540, 541 n.1 (2d Cir. 2005); Triestman v. Fed. Bureau

22   of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam).


                                     3
 1   As discussed below, the adverse credibility determination is

 2   generally sound and is supported by substantial evidence.

 3       The agency found that Ren’s account of past persecution

 4   was implausible, relying in part on the country conditions

 5   evidence.   An implausibility finding may not be based on

 6   “bald speculation,” Zhou Yun Zhang v. U.S. INS, 386 F.3d 66,

 7   74 (2d Cir. 2004), overruled in part on other grounds by Shi

 8   Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d

 9   Cir. 2007), but will be upheld if the IJ’s reasoning is

10   based on inferences “made available to the factfinder by

11   record facts, or even a single fact, viewed in the light of

12   common sense and ordinary experience,” Siewe v. Gonzales,

13   480 F.3d 160, 168-69 (2d Cir. 2007).   The IJ found it

14   implausible that Ren was not fined or sterilized borders on

15   bald speculation, a finding attributed to the State

16   Department report on country conditions.   However, although

17   the report states that families with two children (unlike

18   Ren’s) are pressured to undergo sterilization and that

19   “abortion and sterilization are important methods [of birth

20   planning], along with IUDS,” it does not state that women,

21   allegedly like Ren, who undergo multiple forced abortions,

22   are threatened with sterilization or identify the specific


                                   4
 1   circumstances under which women are forced to have IUDs.

 2   Nor does it state that women who have abortions are

 3   necessarily fined, though it discusses fines for births in

 4   violation of the family planning policy.     To this extent,

 5   the agency’s implausibility finding is unduly speculative.

 6       However, the IJ’s remaining implausibility findings are

 7   not overly speculative and should be accorded deference

 8   because they are “tethered to” the record.     See id.   Thus,

 9   the IJ found implausible Ren’s testimony that she went for a

10   checkup to the same hospital in which she suffered a forced

11   abortion, notwithstanding that she knew she was pregnant.

12   Ren conceded that she “felt somewhat in fear because they

13   would want [her] to have the child aborted.”     The IJ was not

14   required to credit her explanation that she went to that

15   hospital because it was “in partnership with [her] work

16   unit” or that she went to the internal department rather

17   than the obstetrician, as those explanations “do not defeat

18   a finding that the account is implausible.”     Ying Li v.

19   Bureau of Citizenship and Immigration Services, 529 F.3d 79,

20   83 (2d Cir. 2008).

21       Further, the IJ reasonably found that Ren’s claim to

22   fear future persecution was undermined by her voluntary

23   returns to China after traveling to various countries.       Kone
                                  5
 1   v. Holder, 596 F.3d 141, 150-51 (2d Cir. 2010) (although

 2   voluntary return trips on their own are insufficient basis

 3   for adverse credibility determination, they “may be relevant

 4   to credibility in the exercise of an IJ’s informed

 5   discretion”).   The IJ also reasonably found that Ren’s fear

 6   of the enforcement of the family planning policy was

 7   speculative, given that she had had no children, has tried

 8   unsuccessfully to become pregnant while in the United

 9   States, and has had no contact with family planning

10   officials while still in China between 1999 and 2007.   Cf.

11   Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005)

12   (holding that, absent solid support in the record for

13   petitioner’s assertion that he would be sterilized, fear was

14   “speculative at best” even though his wife was pregnant with

15   second child); Rui Ying Lin v. Gonzales, 445 F.3d 127 (2d

16   Cir. 2006) (finding that petitioner’s claim was not “too

17   speculative” where record showed that “she already had two

18   children, that she planned to have more, that she had gone

19   to great lengths to avoid being sterilized in China, and

20   that she had removed her IUD after escaping to the United

21   States”).

22       Because Ren’s implausible testimony called her

23   credibility into question, the agency could and did rely on
                                   6
 1   her failure to provide adequate corroborating evidence.

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

 3   curiam) (holding that failure to corroborate testimony may

 4   bear on credibility).    Although Ren submitted medical

 5   evidence, including an x-ray and other certificates, the IJ

 6   reasonably gave diminished weight to these documents.       See

 7   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d

 8   Cir. 2006) (holding that weight afforded to evidence in

 9   immigration proceedings lies largely within the discretion

10   of the agency).    The x-ray report is titled, “Slip of

11   Fluoroscopy on the Slice of Breast by X-Ray,” but also notes

12   that “[i]n the pelvix, Type “T” coil is seen.”     The IJ

13   doubted that one could detect an IUD by a chest x-ray, and

14   was further troubled by missing information, such as

15   inpatient or outpatient number, and that the x-ray report

16   was dated July 21, 2007 (after Ren arrived in the United

17   States) with no indication as to whether it was original or

18   a copy of an older record re-issued that day.     The IJ was

19   also troubled by information missing from a number of

20   “Diagnosis Certificates” and the lack of evidence regarding

21   the stamps on these documents.     See Xiao Ji Chen, 471 F.3d

22   at 342.   The questionable nature of these documents further

23   supports the adverse credibility determination.     Biao Yang,

24   496 F.3d at 273.
                                    7
 1       The implausibility of Ren’s testimony and the lack of

 2   corroboration constitute substantial evidence that Ren

 3   failed to give a credible account of persecution, and

 4   thereby failed to sustain her burden of proof.     See Xiao Ji

 5   Chen, 471 F.3d at 338.   The adverse credibility

 6   determination was dispositive of asylum, withholding of

 7   removal, and CAT relief because each of these claims share

 8   the same factual predicate.   Paul v. Gonzales, 444 F.3d 148,

 9   156 (2d Cir. 2006).

10       Ren’s ineffective assistance claim must be presented to

11   the agency in the first instance and appears unsupported, as

12   her counsel before the agency did in fact appeal to the BIA.

13   Garcia-Martinez v. Dep’t of Homeland Security, 448 F.3d 511,

14   513-14 (2d Cir. 2006) (per curiam).   We decline to consider

15   the new evidence that Ren submitted with her brief.      8

16   U.S.C. § 1252(b)(4)(A) (providing that review is limited to

17   the administrative record).

18       For the foregoing reasons, the petition for review is

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

20   removal that the Court previously granted in this petition

21   is VACATED, and any pending motion for a stay of removal in

22   this petition is DISMISSED as moot.   Any pending request for

23   oral argument in this petition is DENIED in accordance with

                                   8
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5
6




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