11-5235
Wang v. Holder
BIA
Cheng, IJ
A087 551 779
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
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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 9th day of September, two thousand thirteen.
PRESENT:
JON O. NEWMAN,
ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
SHUQING WANG,
Petitioner,
v. 11-5235
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
FOR PETITIONER: Matthew J. Harris, Law Offices of
Theodore M. Davis, Long Island City,
NY.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Mary Jane Candaux,
Assistant Director; Kiley L. Kane,
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.
Petitioner Shuqing Wang, a native and citizen of China,
seeks review of a November 21, 2011, order of the BIA,
affirming the April 19, 2010, decision of Immigration Judge
(“IJ”) Mary Cheng, which denied her application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Shuqing Wang, No. A087 551
779 (B.I.A. Nov. 21, 2011), aff’g No. A087 551 779 (Immig.
Ct. N.Y. City Apr. 19, 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 decisions of both the IJ and the BIA. See Yun-Zui Guan
v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
The applicable standards of review are well-established.
See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
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For applications such as Wang’s, which are governed by
the REAL ID Act, the agency may base a credibility finding
on an applicant’s demeanor, the plausibility of her account,
and inconsistencies in her statements, without regard to
whether they go “to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii). We “defer to an IJ’s
credibility determination unless, from the totality of the
circumstances, it is plain that no reasonable fact-finder
could make such an adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
Contrary to Wang’s assertions, the agency reasonably
relied on her non-responsive demeanor in finding her not
credible. See Tu Lin v. Gonzales, 446 F.3d 395, 400-01 (2d
Cir. 2006) (emphasizing that because demeanor is “virtually
always evaluated subjectively and intuitively,” an IJ’s
assessment of an applicant’s demeanor merits “great
deference”). Indeed, the IJ reasonably noted that Wang was
not responsive when asked the purpose of her prior 2008 trip
to the United States. While Wang takes issue with the IJ’s
characterization of her demeanor as non-responsive, where,
as here, the agency’s inference “is tethered to the
evidentiary record, we will accord deference to the
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finding.” See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d
Cir. 2007) (noting that “support for a contrary
inference-even one more plausible or more natural-does not
suggest error”); see also Tu Lin, 446 F.3d at 400-01.
Moreover, given the IJ’s explicit consideration of Wang’s
testimony that she was under the control of her agent, which
the IJ found non-responsive, her contention that the IJ
ignored this explanation is without merit. See Xiao Ji Chen
v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir.
2006) (presuming that the agency “has taken into account all
of the evidence before [it], unless the record compellingly
suggests otherwise”).
The agency also reasonably relied on Wang’s omission
from her asylum application statement of the family planning
officers’ repeated visits to her home, and their contact
with her husband,. See 8 U.S.C. § 1158(b)(1)(B)(iii); see
Xiu Xia Lin, 534 F.3d at 166, n.3 (providing that, for
purposes of analyzing a credibility determination, “[a]n
inconsistency and an omission are . . . functionally
equivalent”). Although Wang argues that her application
statement and testimony are not inconsistent because her
statement generally indicates that officials tried to
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convince her to voluntarily consent to an abortion, because
the agency’s inference “is tethered to the evidentiary
record, we will accord deference to the finding.” See
Siewe, 480 F.3d at 168-69. The agency noted that Wang’s
application statement failed to mention that family planning
officers had visited her home nearly every day for over a
month in an attempt to convince her to voluntarily consent
to an abortion. When asked about the omission, she said she
had forgotten. Moreover, while Wang also argues that the
omission of the family planning officers’ visits to her
husband was not a significant omission that would go to the
heart of her claim, under the REAL ID Act, “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.” See Xiu Xia Lin, 534 F.3d at 167 (emphasis in
original). Accordingly, the agency’s adverse credibility
determination is supported by substantial evidence
Having found Wang not credible, the agency reasonably
determined that her failure to provide corroborative
evidence further undermined her credibility. See 8 U.S.C.
§ 1158(b)(1)(B)(ii). We have recognized that an applicant’s
failure to corroborate her testimony may bear on
5
credibility, either because the absence of particular
corroborating evidence is viewed as suspicious, or because
the absence of corroboration in general makes an applicant
unable to rehabilitate testimony that has already been
called into question. See Biao Yang v. Gonzales, 496 F.3d
268, 273 (2d Cir. 2007) (per curiam). While Wang argues
that she adequately explained her mother’s letters’ failure
to mention that she attempted to intervene when she observed
family planning officers dragging Wang into a vehicle to be
taken for a forced abortion, as the BIA reasonably noted,
even crediting Wang’s explanation, her mother’s letters
failed to rehabilitate her testimony regarding the family
planning officers’ visits that had been called into
question. Id.
Because the agency’s adverse credibility determination
is supported by substantial evidence, the agency’s denial of
Wang’s application for asylum and withholding of removal was
not in error as both claims shared the same factual
predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006). As a result, Wang has not shown that the agency’s
adverse credibility determination was the result of the IJ’s
bias. Lastly, we decline to consider the agency’s denial of
CAT relief because Wang does not contest that finding in her
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brief to this Court. See Yueqing Zhang v. Gonzales, 426
F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (“Issues not
sufficiently argued in the briefs are considered waived and
normally will not be addressed on appeal.” (internal
quotation marks omitted)).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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