Rong Shao v. Holder

12-3257
Shao v. Holder
BIA
Nelson, IJ
A089 249 933
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 4th day of April, two thousand fourteen.
5
6 PRESENT:
7
8 DENNIS JACOBS,
9 DENNY CHIN,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 RONG SHAO,
15 Petitioner,
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17 v. 12-3257
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Adedayo O. Idowu, New York, New
25 York.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; Linda S. Wernery,
29 Assistant Director; Theodore C.
30 Hirt, Senior Litigation Counsel,
31 Office of Immigration Litigation,
32 United States Department of Justice,
33 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 Rong Shao, a native and citizen of the People’s

6 Republic of China, seeks review of a July 23, 2012 order of

7 the BIA affirming the February 11, 2011 decision of an

8 Immigration Judge (“IJ”) denying her application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Rong Shao, No. A089 249 933

11 (B.I.A. July 23, 2012), aff’g No. A089 249 933 (Immig. Ct.

12 N.Y. City Feb. 11, 2011). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case.

15 Under the circumstances of this case, we review the

16 decision of the IJ as supplemented by the BIA. See Yan Chen

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

18 applicable standards of review are well established. See

19 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

20 562 F.3d 510, 513 (2d Cir. 2009).

21 For applications such as Shao’s, which are governed by

22 the REAL ID Act of 2005, the agency may, “[c]onsidering the

23 totality of the circumstances,” base a credibility finding

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 1 on the applicant’s “demeanor, candor, or responsiveness,”

2 the plausibility of her account, and inconsistencies in her

3 statements, without regard to whether they go “to the heart

4 of the applicant’s claim.” See 8 U.S.C.

5 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

6 167 (2d Cir. 2008). We “defer...to an IJ’s credibility

7 determination unless, from the totality of the

8 circumstances, it is plain that no reasonable fact-finder

9 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.

10 The agency’s adverse credibility determination is

11 supported by substantial evidence. The agency reasonably

12 based its credibility finding on the implausibility of

13 Shao’s testimony that: (1) she was issued an abortion

14 certificate to obtain sick leave from work, in light of her

15 testimony that she was unemployed at the time; (2) she left

16 China for the sole reason that her pregnancy was forcibly

17 aborted, in light of her testimony that she began preparing

18 to leave China prior to becoming pregnant; and (3) she was

19 issued a passport, despite her failure to pay a fine imposed

20 for violating the family planning policy. See Siewe v.

21 Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (finding that

22 while “bald” speculation is an impermissible basis for an

23 adverse credibility finding, “[t]he speculation that inheres

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 1 in inference is not ‘bald’ if the inference is made

2 available to the factfinder by record facts, or even a

3 single fact, viewed in the light of common sense and

4 ordinary experience”). Shao’s ability to obtain a passport

5 may support an adverse credibility determination when, as

6 here, the IJ considered the totality of the circumstances,

7 such as Shao’s other implausible testimony. See Ying Li v.

8 Bureau of Citizenship and Immigration Servs., 529 F.3d 79,

9 82 (2d Cir. 2008) (“[W]hen an adverse credibility finding is

10 based partly or entirely on implausibility, we review the

11 entire record, not whether each unusual or implausible

12 feature of the account can be explained or rationalized.”).

13 Although Shao offered explanations for some of her

14 implausible testimony, the IJ reasonably declined to credit

15 those explanations, finding them insufficient. See Majidi

16 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (providing

17 that the agency need not credit an applicant’s explanations

18 for inconsistent testimony unless those explanations would

19 compel a reasonable fact-finder to do so). For example, the

20 IJ reasonably rejected Shao’s explanation for receiving an

21 abortion certificate—that they are issued to all patients

22 without regard to employment status—because she provided

23 that testimony only when confronted with her testimony that

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 1 she was unemployed and it conflicted with her first

2 explanation, that she needed it to obtain sick leave from

3 her employer.

4 The adverse credibility determination is also supported

5 by the IJ’s observation that Shao was evasive and hesitant

6 while testifying, and during the hearing fidgeted with her

7 hands and looked down at the table while testifying. See Li

8 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.

9 2006) (upholding a negative demeanor finding when supported

10 by specific instances of inconsistent testimony). Contrary

11 to Shao’s argument, the IJ was not required to solicit an

12 explanation for her demeanor because the problems were self-

13 evident. See Xian Tuan Ye v. DHS, 446 F.3d 289, 295-96 (2d

14 Cir. 2006) (holding that an applicant’s failure to include

15 any reference to his alleged detention and beating in his

16 I-589 form is a “self-evident” inconsistency that the agency

17 may rely on without first soliciting an explanation).

18 Shao challenges the BIA’s finding that she did not

19 provide sufficient corroborating evidence without

20 identifying any missing documents. However, because Shao

21 was not otherwise credible, the BIA was not required to

22 identify the particular pieces of missing evidence, or show

23 that this evidence was reasonably available to her before

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 1 relying on a lack of corroboration to affirm the IJ’s

2 credibility finding. See Xiao Ji Chen v. U.S. Dep’t of

3 Justice, 471 F.3d 315, 341 (2d Cir. 2006). Moreover, the

4 only pieces of evidence relevant to Shao’s personal claim of

5 forced abortion were her abortion certificate, which the IJ

6 found lacked reliability, and letters from relatives

7 describing events that the IJ found implausible.

8 Accordingly, Shao’s inability to submit independent,

9 reliable corroborating evidence prevented her from

10 rehabilitating her testimony. See id.; Biao Yang v.

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

12 Given Shao’s implausible testimony, evasive demeanor,

13 and failure to corroborate her claim, the totality of the

14 circumstances supports the agency’s adverse credibility

15 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

16 Lin, 534 F.3d at 167. Because the only evidence of a threat

17 to Shao’s life or freedom depended upon her credibility,

18 this adverse credibility determination necessarily precludes

19 success on her claims for withholding of removal and CAT

20 relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

21 2006).

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 1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, any pending motion

3 for a stay of removal in this petition is DISMISSED as moot.

4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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