16-2271
Ding v. Sessions
BIA
Christensen, IJ
A205 625 655
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 21st day of November, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 FENGRONG DING,
14 Petitioner,
15
16 v. 16-2271
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Robert J. Adinolfi, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Derek C. Julius,
27 Assistant Director; Bernard A.
28 Joseph, Senior Litigation Counsel,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, 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 Petitioner Fengrong Ding, a native and citizen of the
6 People’s Republic of China, seeks review of a June 10, 2016
7 decision of the BIA affirming a July 7, 2015 decision of an
8 Immigration Judge (“IJ”) denying Ding’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Fengrong Ding, No. A 205 625 655 (B.I.A.
11 June 10, 2016), aff’g No. A 205 625 655 (Immig. Ct. N.Y.C. July
12 7, 2015). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 We have reviewed both the BIA and IJ’s decisions. See
15 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The
16 standards of review are well established. See 8 U.S.C.
17 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
18 (2d Cir. 2008).
19 The agency may, “[c]onsidering the totality of the
20 circumstances,” base an adverse credibility determination on
21 inconsistencies or omissions in an applicant’s oral and written
22 statements and other record evidence. 8 U.S.C.
2
1 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64, 166-67.
2 “We defer . . . to an IJ’s credibility determination
3 unless . . . it is plain that no reasonable fact-finder could
4 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
5 at 167. Upon review, we conclude that the agency’s adverse
6 credibility determination is supported by substantial
7 evidence.
8 “[A] material inconsistency in an aspect of [an
9 applicant]’s story that served as an example of the very
10 persecution from which [s]he sought asylum . . . afford[s]
11 substantial evidence to support [an] adverse credibility
12 finding.” Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,
13 295 (2d Cir. 2006)(internal quotation marks omitted). As the
14 agency found, the record reflects material inconsistencies
15 regarding the basis of Ding’s family planning claim. Ding’s
16 asylum application alleged a single forced abortion and she
17 testified to having undergone one abortion and to having one
18 intra-uterine device (“IUD”) removed. Her medical records, in
19 contrast, showed that she had two IUDs removed and underwent
20 two abortions. And a record that she obtained in 2014,
21 presented to resolve this inconsistency, instead introduced a
22 second inconsistency: Ding testified that family planning
3
1 officials arrived at her home around noon on the day of her
2 abortion, but the 2014 record showed that she was at the hospital
3 about two hours earlier. The agency was not required to credit
4 her explanations for these inconsistencies because the
5 explanations themselves were inconsistent. Majidi v.
6 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
7 Ding argues that these inconsistencies actually enhanced
8 her credibility, because they showed that she suffered worse
9 treatment than she had claimed and demonstrated that she was
10 not attempting to embellish her claim at the hearing. But the
11 inconsistencies are clear. They relate to the heart of her
12 claim. They call into question the validity of Ding’s medical
13 records, and, by extension, her credibility as a whole. See
14 Siewe v. Gonzales, 480 F.3d 160, 170-71 (2d Cir. 2007). Ding
15 also argues that the agency “cherry-picked” facts by relying
16 on her medical records to show inconsistencies while also giving
17 the records little weight. But the agency had the discretion
18 to determine the weight of the evidence, see Xiao Ji Chen v.
19 U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006), and,
20 as noted above, the inconsistencies that it cited called into
21 question the credibility of her testimony and the validity of
22 the records that she presented.
4
1 Given these inconsistencies bearing directly on the basis
2 of Ding’s asylum claim, we conclude that substantial evidence
3 supports the agency’s adverse credibility determination. See
4 Xian Tuan Ye, 446 F.3d at 295; Xiu Xia Lin, 534 F.3d at 167.
5 Because Ding’s claims were all based on the same factual
6 predicate, the adverse credibility determination is
7 dispositive of her petition for asylum, withholding of removal,
8 and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
9 Cir. 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
5