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,
16
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
2
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
3
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
4
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
5
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).
22
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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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