11-2799-ag BIA
Yang v. Holder Nelson, IJ
A093 412 710
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 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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 8th day of August, two thousand twelve.
5
6 PRESENT:
7
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 CHRISTOPHER F. DRONEY,
11 Circuit Judges.
12 _______________________________________
13
14 XIUQIN YANG,
15 Petitioner,
16
17 v. 11-2799-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Albert S. Lefkowitz, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Lyle D. Jentzer, Senior
1 Counsel; Daniel I. Smulow, Trial
2 Attorney, Office of Immigration
3 Litigation, United States Department
4 of Justice, Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Xiuqin Yang, a native and citizen of the People’s
11 Republic of China, seeks review of a June 15, 2011, order of
12 the BIA affirming the May 20, 2009, decision of an
13 Immigration Judge (“IJ”), which denied her application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Xiuqin Yang, No.
16 A093 412 710 (B.I.A. June 15, 2011), aff’g No. A093 412 710
17 (Immig. Ct. N.Y. City May 20, 2009). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 in this case.
20 Under the circumstances of this case, we have reviewed
21 the decision of the IJ as modified and supplemented by the
22 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
23 2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
24 522 (2d Cir. 2005). The applicable standards of review are
25 well-established. See 8 U.S.C. § 1252(b)(4)(B); see also
2
1 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2 Because Yang does not challenge the IJ’s findings that she
3 did not demonstrate a fear of future persecution or her
4 eligibility for CAT relief, we consider only her past
5 persecution claim and the agency’s adverse credibility
6 determination.
7 For applications such as Yang’s, governed by the
8 amendments made to the Immigration and Nationality Act by
9 the REAL ID Act of 2005, the agency may, considering the
10 totality of the circumstances, base a credibility finding on
11 the applicant’s “demeanor, candor, or responsiveness,” the
12 plausibility of his account, and inconsistencies in her
13 statements, without regard to whether they go “to the heart
14 of the applicant’s claim.” See 8 U.S.C.
15 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534
16 F.3d 162, 167 (2d Cir. 2008). We will “defer . . . to an
17 IJ’s credibility determination unless, from the totality of
18 the circumstances, it is plain that no reasonable fact-
19 finder could make” such a ruling. Xiu Xia Lin, 534 F.3d at
20 167. The IJ’s adverse credibility determination here is
21 supported by substantial evidence. The IJ reasonably based
22 her credibility finding on inconsistencies within Yang’s
3
1 medical documentation and between the documentation and
2 Yang’s testimony regarding whether Yang had been pregnant or
3 had undergone a forcible abortion in China. See 8 U.S.C.
4 § 1158(b)(1)(B)(iii) (the agency may consider
5 inconsistencies between the applicant’s oral statements with
6 other evidence in the record in assessing credibility).
7 Yang argues that the BIA failed to adequately consider
8 her explanations that she had not understood the
9 contradicting documents and did not know whether she had
10 been questioned about her abortion. To the contrary, the
11 BIA explicitly considered her explanations and reasonably
12 rejected them given that Yang had not explained why her
13 previous health care providers would affirmatively and
14 repeatedly note that she did not have a pregnancy before
15 2003 or an abortion if she had not provided that
16 information. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
17 F.3d 315, 338 n.17 (2d Cir. 2006) (“[W]e presume that an IJ
18 has taken into account all of the evidence before him,
19 unless the record compellingly suggests otherwise.”); Majidi
20 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (noting that
21 the agency need not credit an explanation for an
22 inconsistency unless those explanations would compel a
4
1 reasonable fact-finder to do so). Given the inconsistencies
2 between Yang’s documentary evidence and her testimony and
3 within the documentary evidence itself, the totality of the
4 circumstances supports the agency’s adverse credibility
5 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
6 Lin, 534 F.3d at 167.
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, the pending motion
9 for a stay of removal in this petition is DISMISSED as moot.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
13
5