12-3064
Dai v. Holder
BIA
Videla, IJ
A087 568 563
A087 568 564
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 6th day of March, two thousand fourteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 RAYMOND J. LOHIER, JR.,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 JIAN FEI DAI, BIA YAO ZHANG
14 Petitioners,
15
16 v. 12-3064
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONERS: David X. Feng, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Blair T. O’Connor,
27 Assistant Director, Claire L.
28 Workman, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Jian Fei Dai and Bao Yao Zhang, natives and
6 citizens of China, seek review of a July 9, 2012, decision
7 of the BIA affirming a May 11, 2011, decision of Immigration
8 Judge (“IJ”) Gabriel C. Videla, denying Dai’s application
9 for asylum, withholding of removal and relief under the
10 Convention Against Torture (“CAT”). In re Jian Fei Dai,Bao
11 Yao Zhang, Nos. A087 568 563/564 (B.I.A. July 9, 2012),
12 aff’g Nos. A087 568 563/564 (Immig. Ct. N.Y. City May 11,
13 2011). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA. See Xue Hong Yang
17 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
18 Accordingly, the IJ’s finding that the asylum application
19 was untimely is not before us. The applicable standards of
20 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
21 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
22 For applications like this one, governed by the REAL ID
23 Act of 2005, the agency may base a credibility finding on an
2
1 asylum applicant’s demeanor, the plausibility of her
2 account, and inconsistencies in her statements, without
3 regard to whether they go “to the heart of the applicant’s
4 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Matter of J–Y–C–, 24
5 I. & N. Dec. 260, 265 (B.I.A. 2007). Analyzed under these
6 standards, the agency’s adverse credibility determination is
7 supported by substantial evidence.
8 In finding Dai not credible, the IJ reasonably relied
9 on the implausibility of her testimony regarding her travel
10 to the United States, and from Texas to New York. Dai
11 testified that she traveled through several countries before
12 arriving in the United States and, during these stops, she
13 handed her passport to border officials; however, her
14 passport bore no stamps from any country other than China.
15 Dai’s contention that the IJ ignored her explanation that
16 she had used another passport when she traveled is
17 unsupported by the record, as Dai repeatedly testified that
18 the passport she presented to the court was the same
19 passport she had used to travel to this country.
20 Moreover, the agency reasonably found implausible Dai’s
21 testimony that she left Houston in the afternoon, traveling
22 by car, and arrived in New York at six or seven o'clock the
3
1 next morning. The agency was not required to credit her
2 explanation that her testimony was mistaken because she is
3 uneducated and could not remember the details of her trip.
4 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)
5 (holding that the agency need not credit an applicant’s
6 explanations unless those explanations would compel a
7 reasonable fact-finder to do so). Thus, as the IJ’s
8 findings are “tethered to record evidence, and there is
9 nothing else in the record from which a firm conviction of
10 error could properly be derived,” the inherent
11 implausibility finding will not be disturbed. Wensheng Yan
12 v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2009).
13 The agency also reasonably relied on the inconsistences
14 between Dai and Zhang’s testimony as to how much they paid
15 to come to the United States, and whether Dai arrived in New
16 York in the early morning or the afternoon. They have not
17 reconciled this testimony or presented any compelling
18 explanation for the inconsistencies. See Majidi, 430 F.3d
19 at 80-81. Although Petitioners argue that these
20 inconsistencies did not go to the heart of Dai’s claim,
21 under the REAL ID Act, the agency may base an adverse
22 credibility determination on testimonial inconsistencies,
4
1 regardless of whether they go to the heart of an applicant’s
2 claim. See 8 U.S.C. 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
3 F.3d at 167 (finding that, under the REAL ID Act, “an IJ may
4 rely on any inconsistency or omission in making an adverse
5 credibility determination as long as the ‘totality of the
6 circumstances’ establishes that an asylum applicant is not
7 credible” (emphasis in original)).
8 Having found Dai not credible, the agency reasonably
9 noted that her failure to provide corroborative evidence
10 further undermined her credibility. An applicant’s failure
11 to corroborate her testimony may bear on credibility, either
12 because the absence of particular corroborating evidence is
13 viewed as suspicious, or because the absence of
14 corroboration in general makes an applicant unable to
15 rehabilitate testimony that has already been called into
16 question. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
17 Cir. 2007).
18 Here, although Dai submitted abortion and sterilization
19 certificates, the IJ did not abuse his discretion in finding
20 these documents to be unreliable because they misstated
21 Dai’s age. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
22 F.3d 315, 342 (2d Cir. 2006) (finding that the weight
23 afforded to the applicant’s evidence lies largely within the
5
1 discretion of the agency). The age discrepancy was
2 especially relevant given that Dai testified that she was
3 forced to have an abortion because she was under the age of
4 22 – the minimum age to be married – but the abortion
5 certificate listed her age as 23.
6 Likewise, although Dai presented medical documentation
7 indicating that she had been sterilized, it was within the
8 agency’s discretion to accord these documents little weight,
9 given her varying testimony as to whether the doctor was a
10 man or a woman, and how many times she visited the doctor’s
11 office.
12 Given the inconsistent and implausible testimony, as
13 well as the lack of corroboration, the agency’s adverse
14 credibility determination is supported by substantial
15 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
16 534 F.3d at 167. Having reasonably found that Dai failed to
17 establish eligibility for asylum on credibility grounds, the
18 agency did not err in denying withholding of removal and
19 relief under the CAT, as these claims shared the same
20 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-
21 57 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice,
22 426 F.3d 520, 523 (2d Cir. 2005).
23
6
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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