09-0566-ag
Tang v. Holder
BIA
Nelson, IJ
A098 221 758
A098 221 759
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 28 th day of June, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT A. KATZMANN,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 MAI ZHU TANG, XIANG HUANG,
14 Petitioners,
15
16 v. 09-0566-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL, UNITED STATES
20 DEPARTMENT OF JUSTICE,
21 Respondents.
22 ______________________________________
23
24 FOR PETITIONERS: Norman Kwai Wing Wong, New York, New
25 York.
26
27 FOR RESPONDENTS: Tony West, Assistant Attorney
28 General, Civil Division; Barry J.
29 Pettinato, Assistant Director; Julia
30 J. Tyler, Trial Attorney, Office of
31 Immigration Litigation, Civil
32 Division, United States Department
33 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioners Mai Zhu Tang and Xiang Huang, natives and
6 citizens of the People’s Republic of China, seek review of a
7 January 23, 2009, order of the BIA affirming the May 1,
8 2006, decision of Immigration Judge (“IJ”) Barbara A. Nelson
9 denying Petitioners’ application for asylum, withholding of
10 removal, and relief under the Convention Against Torture
11 (“CAT”). 1 In re Mai Zhu Tang, Nos. A 098 221 758/759
12 (B.I.A. Jan. 23, 2009), aff’g Nos. A 098 221 758/759
13 (Immig. Ct. N.Y. City May 1, 2006). We assume the parties’
14 familiarity with the underlying facts and procedural history
15 in this case.
16 Under the circumstances of this case, we review the
17 decision of the IJ as supplemented by the BIA. See Yan Chen
18 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005); Yun-Zui Guan
1
Because Xiang Huang’s claim rests entirely upon Mai
Zhu Tang’s claim, we refer largely to Tang throughout
this order. We further note that because the BIA made
clear that it left undisturbed its December 2007 order
affirming the IJ’s adverse credibility determination, we
review that decision as well.
2
1 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The
2 applicable standards of review are well-established.
3 Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008);
4 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
5 I. Adverse Credibility Determination
6 In evaluating Tang’s credibility, the IJ relied on
7 misrepresentations she made during her airport and credible
8 fear interviews, and on her first asylum application. Tang
9 acknowledges that these statements were false, but argues
10 that the IJ impermissibly relied on them in making an
11 adverse credibility determination because they were made
12 under duress resulting from the smuggler’s prior threats.
13 Although plausible, no reasonable factfinder would have been
14 compelled to credit this explanation. See Majidi v.
15 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). Tang
16 additionally argues that false statements made during
17 airport or credible fear interviews may not provide the
18 basis for an adverse credibility determination. However, we
19 have found that an IJ may properly rely on the records of
20 such interviews if they bear “sufficient indicia of
21 reliability.” See Ming Zhang v. Holder, 585 F.3d 715, 725
22 (2d Cir. 2009). As Tang does not dispute the content of the
3
1 records of her airport and credible fear interviews, their
2 reliability is not at issue.
3 Tang further argues that the IJ afforded her
4 documentary evidence insufficient weight. However, we have
5 found that such determinations lie largely within the
6 discretion of the agency. See Xiao Ji Chen v. United States
7 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006). In
8 particular, we have found no error in the agency’s
9 conclusion that so-called “abortion certificates” are not
10 probative. See Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d
11 Cir. 2006). Additionally, in light of the IJ’s adverse
12 credibility determination, the IJ did not err by noting the
13 absence of corroborative evidence that may have
14 rehabilitated Tang’s otherwise not credible testimony. See
15 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
16 Ultimately, the IJ’s adverse credibility determination
17 was supported by substantial evidence.
18 II. Well-Founded Fear of Future Persecution
19 Because the IJ did not question that Tang gave birth to
20 a second child in the United States, the adverse credibility
21 determination is not dispositive of Tang’s claim that she
22 established a well-founded fear of future persecution on
4
1 that basis. Nonetheless, substantial evidence supports the
2 BIA’s finding that Tang did not meet her burden of proof.
3 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir.
4 2008).
5 We find no support for Tang’s argument that the BIA did
6 not adequately consider the evidence of record. See Xiao Ji
7 Chen, 471 F.3d at 342. Indeed, we have previously upheld
8 the BIA’s consideration of the same or similar evidence.
9 See Jian Hui Shao, 546 F.3d at 163. In this case, the IJ
10 reasonably afforded diminished weight to the letter from
11 Tang’s sister claiming that she had been forcibly sterilized
12 based on the birth of her two children in China. See id. at
13 546 F.3d at 160-61. Moreover, although Tang asserts that
14 remand is necessary to allow her the opportunity to
15 supplement the administrative record with updated country
16 conditions evidence, remand for agency consideration of
17 documents outside the administrative record is
18 inappropriate. See Xiao Xing Ni v. Gonzales, 494 F.3d 260,
19 269-70 (2d Cir. 2007). Thus, substantial evidence supports
20 the agency’s determination that Tang failed to establish a
21 well-founded fear of future persecution.
22 As Tang was unable to meet her burden for asylum, she
5
1 necessarily failed to meet the higher burden required for
2 withholding of removal and CAT relief. See Paul v.
3 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
6