     18-2595
     Bao v. Barr
                                                                          BIA
                                                                    Poczter, IJ
                                                                 A087 441 647
                        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 19th day of February, two thousand twenty.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            JOSÉ A. CABRANES,
 9            JOSEPH F. BIANCO,
10                 Circuit Judges.
11   _____________________________________
12
13   YUE YE BAO,
14            Petitioner,
15
16                 v.                                  18-2595
17                                                     NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:               Robert J. Adinolfi, New York, NY.
24
25   FOR RESPONDENT:               Joseph H. Hunt, Assistant
26                                 Attorney General; Anthony P.
27                                 Nicastro, Assistant Director;
28                                 Yanal H. Yousef, Trial Attorney,
1                                 Office of Immigration Litigation,
2                                 United States Department of
3                                 Justice, Washington, DC.
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

8    is DENIED.

9        Petitioner Yue Ye Bao, a native and citizen of the

10   People’s Republic of China, seeks review of an August 14,

11   2018 decision of the BIA affirming a November 1, 2013 decision

12   of an Immigration Judge (“IJ”) denying Bao’s application for

13   asylum,   withholding   of   removal,   and   relief   under   the

14   Convention Against Torture (“CAT”).      In re Yue Ye Bao, No.

15   A087 441 647 (B.I.A. Aug. 14, 2018), aff’g No. A087 441 647

16   (Immig. Ct. N.Y. City Nov. 1, 2013).     We assume the parties’

17   familiarity with the underlying facts and procedural history.

18   Validity of Removal Proceedings

19       Bao first argues that, under the Supreme Court’s decision

20   in Pereira v. Sessions, 138 S. Ct. 2105 (2018), the Notice to

21   Appear (“NTA”) charging her as removable was insufficient to

22   vest jurisdiction with the IJ because it did not contain a

23   hearing date or time.    We have held, however, that Pereira

24   does not “void jurisdiction in cases in which an NTA omits a


                                     2
1    hearing time or place . . . so long as a notice of hearing

2    specifying this information is later sent to the alien.”

3    Banegas Gomez v. Barr, 922 F.3d 101, 110, 112 (2d Cir. 2019).

4    Accordingly, because Bao unquestionably received notice of

5    her hearings at which she appeared, her argument that her NTA

6    was   insufficient     to   commence      removal   proceedings    is

7    foreclosed by Banegas Gomez.

8    Adverse Credibility Determination

9          Under   the   circumstances,   we   have   reviewed   the   IJ’s

10   decision as modified by the BIA, i.e., minus the findings on

11   which the BIA did not rely.     See Xue Hong Yang v. U.S. Dep’t

12   of Justice, 426 F.3d 520, 522 (2d Cir. 2005).        The applicable

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

14   § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76

15   (2d Cir. 2018).

16         “Considering the totality of the circumstances, and all

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

18   determination on . . . the inherent plausibility of the

19   applicant’s or witness’s account, the consistency between the

20   applicant’s or witness’s written and oral statements . . .

21   [and] the internal consistency of each such statement . . .

22   without regard to whether an inconsistency, inaccuracy, or


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1    falsehood     goes     to    the    heart    of   the    applicant’s      claim.”

2    8 U.S.C.      § 1158(b)(1)(B)(iii);           see     also    Xiu   Xia   Lin   v.

3    Mukasey, 534 F.3d 162, 163–64 (2d Cir. 2008).                       Substantial

4    evidence supports the agency’s determination that Bao was not

5    credible as to her claim that family planning officials forced

6    her to terminate a pregnancy and sought to sterilize her for

7    violating China’s family planning policy.

8          The     agency        reasonably       relied      on     a   series      of

9    inconsistencies in Bao’s testimony and between her testimony

10   and   other    evidence.           See   8   U.S.C.     § 1158(b)(1)(B)(iii).

11   Bao’s testimony that she lived in hiding and on the run from

12   family planning officials was implausible and inconsistent

13   with her testimony that she owned and openly operated a store

14   in Hangzhou for six years, that she owned and openly operated

15   a store in Shanghai for four years, that she twice travelled

16   to Hong Kong to purchase merchandise for her stores, and that

17   she frequently went back to her hometown.                      Bao’s testimony

18   that her husband lived in Inner Mongolia while she lived in

19   hiding by herself in Shanghai was inconsistent with her

20   husband’s letter that he moved with her to Shanghai.                      And Bao

21   made varying statements regarding how much she and her husband

22   were fined under the family planning policy.                    Similarly, the


                                              4
1    agency did not err in relying on Bao’s mother’s failure to

2    mention in her letter that she received a family planning

3    notice directing Bao to report for sterilization.            See Hong

4    Fei Gao, 891 F.3d at 78 (“[T]he probative value of a witness’s

5    prior silence on particular facts depends on whether those

6    facts are ones the witness would reasonably have been expected

7    to disclose.”).     Bao could not compellingly explain these

8    inconsistencies and omissions.         See Majidi v. Gonzales, 430

9    F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than

10   offer a plausible explanation for his inconsistent statements

11   to secure relief; he must demonstrate that a reasonable fact-

12   finder would be compelled to credit his testimony.” (internal

13   quotation marks omitted)).

14       Having    questioned       Bao’s    credibility,   the     agency

15   reasonably relied further on her failure to rehabilitate her

16   testimony    with   reliable     corroborating   evidence.        “An

17   applicant’s failure to corroborate his or her testimony may

18   bear on credibility, because the absence of corroboration in

19   general makes an applicant unable to rehabilitate testimony

20   that has already been called into question.”           Biao Yang v.

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

22   reasonably declined to credit the letters from Bao’s family


                                       5
1    members because, in addition to the inconsistencies noted

2    above, the authors were interested witnesses who were not

3    available for cross-examination.            See Y.C. v. Holder, 741

4    F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the

5    agency’s    evaluation   of    the       weight    to   be    afforded   an

6    applicant’s documentary evidence.”); see also In re H-L-H- &

7    Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding that

8    letters from alien’s friends and family were insufficient to

9    provide substantial support for alien’s claims because they

10   were     from   interested    witnesses      not    subject    to   cross-

11   examination), overruled on other grounds by Hui Lin Huang v.

12   Holder, 677 F.3d 130, 133–38 (2d Cir. 2012).

13          Given the inconsistency and corroboration findings, the

14   agency’s adverse credibility determination is supported by

15   substantial evidence.         See 8 U.S.C. § 1158(b)(1)(B)(iii).

16   That determination was dispositive of asylum, withholding of

17   removal, and CAT relief because all three forms of relief

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

19   Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).                 Contrary to

20   Bao’s contention, the IJ found her not credible as to the

21   entirety of her testimony, including her forced abortion

22   claim.


                                          6
1    Competency

2           We need not review the agency’s competency determination

3    because Bao has abandoned that issue by not raising it in her

4    brief.    See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1,

5    545 n.7 (2d Cir. 2005).    Nevertheless, we note that the agency

6    took     appropriate   measures    to   determine   competency   and

7    reasonably concluded that Bao was competent to proceed.          See

8    In re M-A-M-, 25 I. & N. Dec. 474, 479–83 (B.I.A. 2011).

9           For the foregoing reasons, the petition for review is

10   DENIED.    All pending motions and applications are DENIED and

11   stays VACATED.

12                                     FOR THE COURT:
13                                     Catherine O’Hagan Wolfe,
14                                     Clerk of Court




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