16-2558
Jiang v. Sessions
BIA
Hom, IJ
A206 565 575 / 576
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 13th day of October, two thousand seventeen.
5
6 PRESENT: JOSÉ A. CABRANES,
7 RAYMOND J. LOHIER, JR.,
8 SUSAN L. CARNEY,
9 Circuit Judges.
10 _____________________________________
11
12 JINMEI JIANG, BINGBING TANG,
13 Petitioners,
14
15 v. 16-2558
16 NAC
17 JEFFERSON B. SESSIONS III,
18 UNITED STATES ATTORNEY GENERAL,
19 Respondent.
20 _____________________________________
21
22 FOR PETITIONERS: Zhen Liang Li, New York, NY.
23
24 FOR RESPONDENT: Chad A. Readler, Acting Assistant
25 Attorney General, Civil Division,
26 Jeffery R. Leist, Senior Litigation
27 Counsel, Aric A. Anderson, Trial
28 Attorney, Office of Immigration
29 Litigation, United States
30 Department of Justice, Washington,
31 DC.
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 Petitioners Jinmei Jiang and Bingbing Tang, natives and
6 citizens of the People’s Republic of China, seek review of a
7 June 23, 2016 decision of the BIA affirming a January 28, 2015
8 decision of an Immigration Judge (“IJ”) denying Jiang’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Jinmei
11 Jiang, Bingbing Tang, Nos. A206 565 575/576 (B.I.A. June 23,
12 2016), aff’g Nos. A206 565 575/576 (Immig. Ct. N.Y. City Jan.
13 28, 2015). 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 both
16 the IJ’s and the BIA’s opinions “for the sake of completeness.”
17 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
18 2006). The applicable standards of review are well
19 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
20 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The agency may,
21 “[c]onsidering the totality of the circumstances,” base a
2
1 credibility finding on inconsistencies in an applicant’s
2 statements and other 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 Jiang was not credible.
7 First, the agency reasonably determined that Jiang
8 undermined her own credibility by omitting from her asylum
9 interview and written statement any mention of the bribe her
10 mother-in-law paid to a doctor. See 8 U.S.C.
11 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166-67. Jiang
12 testified that after her IUD was removed, her mother-in-law paid
13 a doctor to cover up the removal at Jiang’s gynecological
14 checkups. Jiang argues that her failure to mention the bribe
15 at her asylum interview should not count against her because
16 her interviewer wrongly assumed that Jiang stopped attending
17 her checkups. Jiang’s argument ignores the interviewer’s
18 subsequent question about how Jiang was able to hide her IUD
19 removal. Jiang further argues that her omission of the bribe
20 from her written statement was insignificant because the bribe
21 does not relate to the discovery of her unauthorized pregnancy
3
1 in September 2012. But Jiang’s claim of persecution rests on
2 China’s coercive birth control policies, of which IUD use is
3 a strictly enforced component, so her evasion of those policies
4 does relate to her credibility. See Xian Tuan Ye v. Dep’t of
5 Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding that
6 “a material inconsistency in an aspect of [the applicant]’s
7 story that served as an example of the very persecution from
8 which he sought asylum” affords “substantial evidence to
9 support the adverse credibility finding” (internal quotations
10 omitted)).
11 The agency also reasonably relied on inconsistencies in
12 Jiang’s testimony about the availability of her medical records
13 and whether she moved to a new home after she discovered her
14 second pregnancy. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
15 534 F.3d at 166–67. Jiang was unable to explain why she was
16 able to obtain medical records for her IUD insertion and
17 abortion, but not for the complications she suffered after the
18 abortion. In addition, Jiang testified inconsistently about
19 whether she moved during her second pregnancy, calling into
20 question her statements that she and her husband had reason to
21 avoid detection.
4
1 Nor did the agency err in concluding that Jiang failed to
2 rehabilitate her non-credible testimony with her documentary
3 evidence. Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
4 2007) (“An applicant’s failure to corroborate his or her
5 testimony may bear on credibility, because the absence of
6 corroboration in general makes an applicant unable to
7 rehabilitate testimony that has already been called into
8 question.”). The agency reasonably gave little weight to
9 Jiang’s husband’s letter because he was not subject to
10 cross-examination, and to Jiang’s mother-in-law’s letter
11 because it was not made under oath and omitted any mention of
12 the bribes. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
13 315, 342 (2d Cir. 2006) (holding that weight afforded to
14 applicant’s evidence in immigration proceedings lies largely
15 within agency discretion); see also Y.C. v. Holder, 741 F.3d
16 324, 334 (2d Cir. 2013) (deferring to agency’s determination
17 that diminished weight be given to evidence “submitted by an
18 interested witness”). The agency also reasonably gave
19 diminished weight to Jiang’s medical records because they were
20 not signed, attested, or certified, and she could not
21
5
1 compellingly explain why only some records were available.
2 Xiao Ji Chen, 471 F.3d at 342; Y.C., 741 F.3d at 334.
3 The reliability of the abortion certificate depended on
4 Jiang’s credibility. Because Jiang’s testimony had already
5 been called into question, the agency did not err in declining
6 to find the abortion certificate dispositive. The BIA referred
7 to case law discussing the State Department’s observation that
8 there was no evidence that abortion certificates were provided
9 for involuntary abortions. See Xiao Xing Ni v. Gonzales, 494
10 F.3d 260, 263 (2d Cir. 2007) (noting a “1998 State Department
11 Country Report which states that United States authorities are
12 unaware of any so-called abortion certificates and that the only
13 document that might resemble such a certificate . . . is a
14 document issued by hospitals upon a patient’s request after a
15 voluntary abortion” (internal quotation marks omitted)); Tu Lin
16 v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006) (same). When a
17 State Department country report contradicts evidence or does
18 not rehabilitate the credibility of an asylum applicant whose
19 testimony has been found not credible, the agency does not abuse
20 its discretion in declining to credit the applicant’s evidence.
21 See Xiao Ji Chen, 471 F.3d at 342.
6
1 Given the significant omissions and inconsistencies, the
2 agency’s adverse credibility determination is supported by
3 substantial evidence. See Xiu Xia Lin, 534 F.3d at 165-66; Xian
4 Tuan Ye, 446 F.3d at 295. That determination is dispositive
5 of Jiang’s application for asylum, withholding of removal, and
6 CAT relief because all three claims are based on the same factual
7 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
8 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of removal
11 that the Court previously granted in this petition is VACATED,
12 and any pending motion for a stay of removal in this petition
13 is DISMISSED as moot. Any pending request for oral argument
14 in this petition is DENIED in accordance with Federal Rule of
15 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
16 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
7