    11-4929
    Tai v. Holder
                                                                                  BIA
                                                                             Videla, IJ
                                                                          A087 441 715
                     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 15th day of August, two thousand thirteen.

    PRESENT:
             DENNIS JACOBS,
                  Chief Judge,
             GERARD E. LYNCH,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _______________________________________

    HUAZI TAI,
             Petitioner,

                    v.                                     11-4929
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Lewis G. Hu, Law Offices of Lewis
                                  Hu, New York, NY.

    FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
                                  General; Daniel E. Goldman, Senior
                                  Litigation Counsel; Yamileth G.
                                  Davila, Trial 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.

    Huazi Tai, a native and citizen of the People’s

Republic of China, seeks review of an October 25, 2011,

decision of the BIA affirming the January 20, 2010, decision

of an Immigration Judge (“IJ”), which denied her application

for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”).     In re Huazi Tai, No.

A087 441 715 (B.I.A. Oct. 25, 2011), aff’g No. A087 441 715

(Immig. Ct. N.Y. City Jan. 20, 2010).    We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA.     See Yan Chen

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

substantial evidence standard of review applies and we

uphold the IJ's factual findings if they are supported by

reasonable, substantial and probative evidence in the

record.”     See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

Cir. 2009) (internal quotation marks omitted).     For asylum


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applications such as Tai’s, governed by the amendments made

to the Immigration and Nationality Act by the REAL ID Act of

2005, the agency may, “[c]onsidering the totality of the

circumstances, . . . base a credibility determination on the

demeanor, candor, or responsiveness of the applicant,” or

any inconsistency or omission in an asylum applicant’s

statements, “without regard to whether the inconsistency,

inaccuracy, or falsehood goes to the heart of the

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

Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

    Tai challenges the agency’s negative demeanor findings,

explaining that she was hesitant to answer the IJ’s

questions because she realized that her attorney had made

mistakes in preparing her application, and she was trying to

decide whether to protect him.     However, Tai’s argument

misapprehends the “degree of deference” that is given to an

IJ’s assessment of demeanor.     Majidi v. Gonzales, 430 F.3d

77, 80 (2d Cir. 2005).   Where, as here, the agency’s

demeanor findings were not based on a misstatement of the

record, cf. Li Zu Guan v. INS, 453 F.3d 129, 139-40 (2d Cir.

2006), but rather were “tethered to the evidentiary record,”

Siewe v. Gonzales, 480 F.3d 160, 169 (2d Cir. 2007), Tai’s


                               3
explanation for her poor demeanor is insufficient to compel

a reasonable fact-finder to credit her testimony.    Majidi,

430 F.3d at 80-81.

    Tai also challenges the agency’s determination that an

abortion certificate stating that her abortion was voluntary

undermined her testimony that her abortion was involuntary.

First, Tai “assumes” that the voluntary language in the

abortion certificate was false as to her voluntariness

because a doctor could have been told to write it that way.

However, the agency reasonably relied on this discrepancy in

reaching its adverse credibility determination, because “an

IJ may rely on any inconsistency or omission in making an

adverse credibility determination as long as the ‘totality

of the circumstances’ establishes that an asylum applicant

is not credible.”    Xiu Xia Lin, 534 F.3d at 167 (emphasis in

original) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)).   Tai’s

explanation is insufficient to compel a reasonable fact-

finder to credit her testimony, Majidi, 430 F.3d at 80-81,

given that the evidentiary record and background information

tended to contradict that explanation.

    Tai also asserts that the agency erred in concluding

that her testimony was untruthful simply because she was

ignorant of the contents of the abortion certificate.

                               4
However, the IJ discredited her testimony not because of her

ignorance of her supporting documents, but rather because

the documents “directly contradict[ed]” her testimony.       Tai

further contends that the agency erred in discrediting her

testimony because the discrepancies resulted from her former

attorney’s mistakes in submitting contradictory evidence.

However, this explanation is not properly before us, as Tai

neither presented this explanation nor raised a claim of

ineffective assistance of counsel before the BIA.    See Lin

Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d

Cir. 2007) (describing the issue exhaustion requirement as

mandatory).

    Finally, the IJ found that Tai failed to rehabilitate

her discrepant testimony by calling her husband to testify.

Tai argues that her husband’s testimony was not

“indispensable,” as he was an interested witness, and as she

otherwise sufficiently corroborated her claim.    However,

Tai’s argument misapprehends her burden of proof: once an IJ

has reasonably called testimony into question, the IJ may

require an applicant to corroborate it.   See Biao Yang v.

Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

    The demeanor finding, inconsistencies, and lack of

corroboration provide substantial evidence to support the
                             5
adverse credibility determination. See 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.   As the

only evidence of a threat to Tai’s life or freedom depended

upon her credibility, the adverse credibility determination

is dispositive of her claims for asylum, withholding of

removal, and CAT relief.   See Paul v. Gonzales, 444 F.3d

148, 156-57 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of

Justice, 426 F.3d 520, 523 (2d Cir. 2005).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, petitioner’s

motion for a stay of removal in this petition is DENIED as

moot.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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