17-1069
Yang v. Barr
BIA
Hom, IJ
A206 289 537
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 13th day of May, two thousand nineteen.
PRESENT:
RALPH K. WINTER,
PETER W. HALL,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
FANG YANG,
Petitioner,
v. 17-1069
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Khagendra Gharti-Chhetry, Esq.,
New York, NY.
FOR RESPONDENT: Chad A. Readler, Principal Deputy
Assistant Attorney General; Jeff
R. Leist, Senior Litigation
Counsel; Kathleen Kelly Volkert,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Fang Yang, a native and citizen of the
People’s Republic of China, seeks review of a March 23,
2017 decision of the BIA affirming a December 14, 2015
decision of an Immigration Judge (“IJ”) denying Yang’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Fang
Yang, No. A206 289 537 (B.I.A. Mar. 23, 2017), aff’g No.
A206 289 537 (Immig. Ct. N.Y. City Dec. 14, 2015). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on . . . the consistency between the applicant’s
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. . . written and oral statements . . . , the internal
consistency of each such statement, [and] the consistency of
such statements with other evidence of record . . . without
regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163 n.2.
Substantial evidence supports the agency’s determination that
Yang was not credible as to her claim that she was forced to
undergo a sterilization procedure and fined for violating
China’s family planning policy by giving birth to three
children.
The agency reasonably relied on several inconsistencies
in Yang’s statements in finding that her testimony was not
credible. See 8 U.S.C. § 1158(b)(1)(B)(iii). First, Yang’s
testimony that she moved from Lianjiang to Fuzhou to avoid
family planning officials after she discovered she was
pregnant with her second child in October 2005 and that she
gave birth to her child in Fuzhou in June 2006 was
inconsistent with her testimony that she first went to Fuzhou
in September 2006. When asked to explain the inconsistency,
Yang stated unresponsively that she delivered her second
child in Fuzhou because she did not have a birth permit.
Asked again to explain, Yang stated that she traveled back
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and forth between her hometown and Fuzhou but did not move to
Fuzhou until September 2006. The agency was not compelled
to credit this explanation because, when she was asked when
she “went” to Fuzhou for the “first time” after she became
pregnant with her second child, rather than when she “moved”
to Fuzhou, she gave September 2006 as the date. See Majidi
v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner
must do more than offer a plausible explanation for his
inconsistent statements to secure relief; he must demonstrate
that a reasonable fact-finder would be compelled to credit
his testimony.” (internal quotation marks omitted)).
The agency also reasonably found Yang’s written statement
that she stayed in Fuzhou for one month after giving birth to
her second child inconsistent with her testimony that she
stayed for only one week. See 8 U.S.C. § 1158(b)(1)(B)(iii).
She could not explain this inconsistency. See Majidi, 430
F.3d at 80.
The agency also did not err in relying on the
inconsistency between Yang’s asylum interview statement
that her husband obtained money in China to pay their
family planning fine and her testimony that she sent money
from the United States to pay the fine. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); see Diallo v. Gonzales, 445 F.3d 624,
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632 (2d Cir. 2006) (concluding that “asylum . . .
interviews do not call for special scrutiny, as airport
interviews do” and finding reliable for credibility
purposes an interview record that “contain[ed] a
meaningful, clear, and reliable summary of the statements
made by [petitioner]” (internal quotation marks omitted)).
When confronted with this inconsistency, Yang claimed that
she had not told her interviewer that her husband paid the
fine with funds he had obtained in China. The agency was
not compelled to credit this explanation because, on
further questioning, she again changed her testimony to
admit that she did not remember what she had said to the
interviewer. See Majidi, 430 F.3d at 80.
Having questioned Yang’s credibility, the agency
reasonably relied further on her failure to rehabilitate
her testimony with reliable corroborating evidence. “An
applicant’s failure to corroborate . . . her testimony may
bear on credibility, because the absence of corroboration
in general makes an applicant unable to rehabilitate
testimony that has already been called into question.”
Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
The IJ reasonably declined to afford weight to a letter
from Yang’s husband in China. See Y.C. v. Holder, 741 F.3d
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324, 334 (2d Cir. 2013) (deferring to agency’s decision to
afford little weight to husband’s letter because it was
unsworn and from an interested witness). And the IJ did
not err in noting that Yang’s sterilization certificate,
radiology report, and fine receipts did not establish that
her tubal ligation was forced, as would be required to
establish her eligibility for relief. See 8 U.S.C.
§ 1101(a)(42)(B) (“[A] person who has been forced . . . to
undergo involuntary sterilization . . . shall be deemed to
have been persecuted on account of political opinion.”).
Given these inconsistencies and lack of reliable
corroboration, we conclude that substantial evidence
supports the agency’s adverse credibility determination.
See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at
163-64. That finding is dispositive of asylum, withholding
of removal, and CAT relief because all three claims are
based on the same factual predicate. See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe
Clerk of Court
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