14-2274
Ding v. Lynch
BIA
Hom, IJ
A201 120 232
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 15th day of December, two thousand fifteen.
5
6 PRESENT:
7 PETER W. HALL,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 YINDI DING,
14 Petitioner,
15
16 v. 14-2274
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: John W. Reinhardt, Huntington, New
25 York.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General; Blair T.
1 O’Connor, Assistant Director; Scott
2 M. Marconda, Trial Attorney, Office
3 of Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review is
10 DISMISSED in part and DENIED in part.
11 Petitioner Yindi Ding, a native and citizen of the People’s
12 Republic of China, seeks review of a May 30, 2014, decision of
13 the BIA affirming a March 1, 2013, decision of an Immigration
14 Judge (“IJ”) denying Ding’s application for asylum, withholding
15 of removal, and relief under the Convention Against Torture
16 (“CAT”). In re Yindi Ding, No. A201 120 232 (B.I.A. May 30,
17 2014), aff’g No. A201 120 232 (Immig. Ct. N.Y. City Mar. 1,
18 2013). We assume the parties’ familiarity with the underlying
19 facts and procedural history in this case.
20 As an initial matter, we lack jurisdiction to review the
21 agency’s decision insofar as it pretermitted Ding’s untimely
22 asylum application. See 8 U.S.C. § 1158(a)(3). Accordingly,
23 to the extent Ding seeks review of that determination, her
24 petition is dismissed. However, we may review Ding’s challenge
25 to the agency’s denial of withholding of removal and CAT relief.
2
1 Under the circumstances of this case, we have reviewed the
2 IJ’s decision as modified by the BIA, i.e., minus the basis for
3 denying relief that the BIA declined to consider (the denial
4 of CAT relief unrelated to credibility). See Xue Hong Yang v.
5 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
6 applicable standards of review are well established. See
7 8 U.S.C. § 1252(b)(4)(B); see also Su Chun Hu v. Holder, 579
8 F.3d 155, 158 (2d Cir. 2009).
9 The agency may, “[c]onsidering the totality of the
10 circumstances, . . . base a credibility determination on the
11 demeanor, candor, or responsiveness of the applicant . . ., the
12 inherent plausibility of the applicant’s . . . account, the
13 consistency between the applicant’s . . . written and oral
14 statements (whenever made and whether or not under oath and
15 considering the circumstances under which the statements were
16 made), . . . without regard to whether an inconsistency . . .
17 goes to the heart of the applicant’s claim.” 8 U.S.C.
18 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
19 163-64 (2d Cir. 2008).
20 Ding sought asylum and related relief based on her alleged
21 forced sterilization under China’s family planning policy in
22 1980 and her conversion to Christianity in the United States.
3
1 In finding her not credible, the IJ reasonably relied on Ding’s
2 demeanor, noting that she failed to respond directly to
3 questions throughout her testimony. See 8 U.S.C.
4 § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d 77,
5 81 n.1 (2d Cir. 2005). That finding is supported by the record.
6 The IJ’s demeanor finding and the overall credibility
7 determination are bolstered by record inconsistencies
8 regarding Ding’s medical records from China. See Li Hua Lin
9 v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006); see
10 also Xiu Xia Lin, 534 F.3d at 165-67. Ding did not provide
11 compelling explanations for these inconsistencies. See
12 Majidi, 430 F.3d at 80.
13 The agency also reasonably relied on Ding’s inability to
14 testify credibly about her religion. Although the agency may
15 err in basing a credibility determination on an applicant’s lack
16 of doctrinal knowledge, there are “instances in which the nature
17 of an individual applicant’s account would render h[er] lack
18 of a certain degree of doctrinal knowledge suspect and could
19 therefore provide substantial evidence in support of an adverse
20 credibility finding.” Rizal v. Gonzales, 442 F.3d 84, 90 (2d
21 Cir. 2006). Because Ding testified that she had been reading
22 the Bible every day for six years and attending church regularly
4
1 during that time, the agency did not err in questioning her
2 credibility based on her lack of basic doctrinal knowledge.
3 See id.
4 The agency also found an inconsistency in Ding’s testimony
5 “that she had received a [U.S.] doctor’s letter in 2011,”
6 whereas the undated letter indicates that it was printed on
7 December 15, 2010. CAR at 56. This discrepancy, if there was
8 any, does not amount to an inconsistency. Ding at first
9 explained that she did not remember the exact date, but
10 responded that “it’s around 2011” after the government asked
11 “when [she] got [the letter], approximately” and whether she
12 could “estimate the year.” Id. at 112-14. Thus, Ding’s
13 testimony was all that it purported to be: a reasonable
14 approximation. We would be reluctant to leave undisturbed the
15 IJ’s credibility determination if it rested substantially on
16 this supposed inconsistency. But we conclude that remand is
17 futile and therefore not required because “(1) substantial
18 evidence in the record relied on by the IJ, considered in the
19 aggregate, supports the IJ’s finding that petitioner lacked
20 credibility, and (2) disregarding those aspects of the IJ's
21 reasoning that are tainted by error, we can state with
22 confidence that the IJ would adhere to his decision were the
5
1 petition remanded.” Siewe v. Gonzales, 480 F.3d 160, 167 (2d
2 Cir.2006) (internal quotation marks omitted).
3 Having found that Ding’s testimony was not credible, the
4 agency reasonably relied further on her failure to rehabilitate
5 her testimony with reliable evidence corroborating or
6 independently supporting her claims of past harm and fear of
7 future harm. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
8 Cir. 2007). Ding did not submit evidence of her pregnancy or
9 other medical records from China and admitted that she made no
10 effort to obtain such evidence. The agency reasonably declined
11 to credit an unsworn letter from Ding’s daughter. See Y.C. v.
12 Holder, 741 F.3d 324, 332 (2d Cir. 2013). It likewise
13 reasonably gave little evidentiary weight to the U.S. doctor’s
14 letter because it was an undated email copy that provided only
15 “inferential evidence” for Ding’s claim and did not include the
16 reports on which it claimed to rely, and because the doctor was
17 not available for cross-examination. CAR at 57.
18 Ultimately, the agency’s adverse credibility
19 determination is supported by substantial evidence. See
20 8 U.S.C. § 1158(b)(1)(B)(iii). That finding is dispositive of
21 withholding of removal and CAT relief. See Paul v. Gonzales,
22 444 F.3d 148, 156-57 (2d Cir. 2006).
6
1 For the foregoing reasons, the petition for review is
2 DISMISSED in part and DENIED in part.
3 FOR THE COURT:
4 Catherine O=Hagan Wolfe, Clerk
7