15-3734
Yan v. Lynch
BIA
Vomacka, IJ
A089 114 638
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 3rd day of January, two thousand seventeen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 MEI QING YAN, AKA YAN-MEI QING,
14 Petitioner,
15
16 v. 15-3734
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas Ogden, Alhambra, California.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Anthony
27 P. Nicastro, Assistant Director;
28 Drew C. Brinkman, Trial Attorney,
29 Office of Immigration Litigation,
30 United 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 is
4 DENIED.
5 Petitioner Mei Qing Yan, a native and citizen of the
6 People’s Republic of China, seeks review of an October 22, 2015,
7 decision of the BIA affirming a March 26, 2014, decision of an
8 Immigration Judge (“IJ”) denying Yan’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Mei Qing Yan, No. A089 114 638 (B.I.A.
11 Oct. 22, 2015), aff’g No. A089 114 638 (Immig. Ct. N.Y. City
12 Mar. 26, 2014). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and the BIA’s opinions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). The applicable standards of review are well
18 established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
19 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The agency may,
20 “[c]onsidering the totality of the circumstances, . . . base
21 a credibility determination on the demeanor, candor, or
22 responsiveness of the applicant . . . , the inherent
2
1 plausibility of the applicant’s . . . account,” and
2 inconsistencies in the record evidence “without regard to
3 whether” those inconsistencies go “to the heart of the
4 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
5 Lin, 534 F.3d at 163-64. Substantial evidence supports the
6 agency’s determination that Yan was not credible as to her claim
7 that Chinese family planning officials forced her to abort a
8 pregnancy.
9 The IJ reasonably relied on Yan’s evasive and unresponsive
10 answers on cross-examination, which are reflected in the
11 record. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v.
12 Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).
13 This demeanor finding and the overall credibility
14 determination are bolstered by record inconsistencies
15 regarding whether Yan had two abortions (one forced and one
16 voluntary) as a result of China’s family planning policy or only
17 one. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109
18 (2d Cir. 2006); see also Xiu Xia Lin, 534 F.3d at 165-67 & n.3.
19 Yan explained that she failed to mention her second abortion
20 in her asylum application or on direct examination because it
21 was voluntary and thus not as relevant. The IJ was not
22 compelled to credit that explanation because Yan’s second
3
1 abortion was directly relevant to her claim given her testimony
2 that she had the abortion due to officials’ earlier threats to
3 forcibly terminate any future pregnancies. See Majidi, 430
4 F.3d at 80 (“A petitioner must do more than offer a ‘plausible’
5 explanation for his inconsistent statements to secure relief;
6 ‘he must demonstrate that a reasonable fact-finder would be
7 compelled to credit his testimony.’” (quoting Zhou Yun Zhang
8 v. INS, 386 F.3d 66, 76 (2d Cir. 2004))). Furthermore, Yan
9 included less relevant information in her written statement.
10 The agency also did not err in relying on Yan’s testimony
11 that she married her second husband in order to enter the United
12 States and never saw him again after U.S. immigration
13 authorities denied her a visa for lack of a bona fide marriage.
14 This testimony indicated Yan’s willingness to lie to obtain U.S.
15 immigration benefits. See Siewe v. Gonzales, 480 F.3d 160, 170
16 (2d Cir. 2007).
17 Having questioned Yan’s credibility, the agency reasonably
18 relied further on her failure to corroborate her testimony with
19 a statement from her husband. See Biao Yang v. Gonzales, 496
20 F.3d 268, 273 (2d Cir. 2007). Her husband had first-hand
21 knowledge of certain aspects of her claim, and his unlawful
22 status did not prevent him from submitting an affidavit or
4
1 testifying on her behalf. See Yan Juan Chen v. Holder, 658 F.3d
2 246, 253 (2d Cir. 2011)
3 Given the demeanor, inconsistency, and lack of
4 corroboration findings, the agency’s adverse credibility
5 determination is supported by substantial evidence. 8 U.S.C.
6 § 1158(b)(1)(B)(iii). That determination is dispositive of
7 Yan’s claims for asylum, withholding of removal, and CAT relief
8 because all three claims are based on the same factual
9 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
10 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DISMISSED as moot. Any pending request for oral argument
16 in this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
5