Filed: Aug. 07, 2013
Latest Update: Mar. 28, 2017
Summary: 12-1825 Miao v. Holder BIA Hom, IJ A088 792 840 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 NOTATIO
Summary: 12-1825 Miao v. Holder BIA Hom, IJ A088 792 840 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..
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12-1825
Miao v. Holder
BIA
Hom, IJ
A088 792 840
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 7th day of August, two thousand thirteen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 LIN-HUANG MIAO, AKA LIN MAU,
14 Petitioner,
15
16 v. 12-1825
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Troy Nader Moslemi, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
27 Assistant Attorney General; William
28 C. Peachey, Assistant Director;
29 Daniel E. Goldman, Senior Litigation
1 Counsel, Office of Immigration
2 Litigation, United States Department
3 of Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Lin-Huang Miao, a native and citizen of
10 China, seeks review of an April 13, 2012, order of the BIA,
11 affirming a September 30, 2009, decision of Immigration
12 Judge (“IJ”) Sandy Hom, denying her application for asylum,
13 withholding of removal, and relief under the Convention
14 Against Torture (“CAT”). In re Lin-Huang Miao, No. A088 792
15 840 (B.I.A. Apr. 13, 2012), aff’g No. A088 792 840 (Immig.
16 Ct. N.Y. City Sept. 30, 2009). We assume the parties’
17 familiarity with the underlying facts and procedural history
18 in this case.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decision. Mei Chai Ye v. U.S. Dep’t of Justice,
21 489 F.3d 517, 523 (2d Cir. 2007). The applicable standards
22 of review are well-established. See 8 U.S.C.
23 § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510, 513
24 (2d Cir. 2009). For applications like this one, governed by
2
1 the REAL ID Act of 2005, the agency may, considering the
2 totality of the circumstances, base a credibility finding on
3 an asylum applicant’s demeanor, the plausibility of her
4 account, and inconsistencies in her statements, without
5 regard to whether they go “to the heart of the applicant’s
6 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24
7 I. & N. Dec. 260, 265 (B.I.A. 2007). Analyzed under these
8 standards, the agency’s adverse credibility determination is
9 supported by substantial evidence.
10 In finding Miao not credible, the IJ reasonably relied
11 on the inconsistency between her testimony that she had been
12 pregnant and had a forced abortion in China and her medical
13 records in the United States showing that her 2009 pregnancy
14 with her son was her first pregnancy. See 8 U.S.C.
15 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
16 167 (2d Cir. 2008)(per curiam). Although Miao argues that
17 the IJ should have interpreted one particular notation in
18 her records as evidence of a prior pregnancy, the IJ
19 explicitly noted multiple references to her 2009 pregnancy
20 as her first. Miao did not explain these other notations.
21 See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005)
22 (holding that an agency need not credit an applicant’s
3
1 explanations for inconsistencies in the record unless those
2 explanations would compel a reasonable fact-finder to do
3 so).
4 Furthermore, the agency did not err in finding that
5 Miao failed to provide sufficient corroboration of her
6 pregnancy or abortion in China, as the IJ identified
7 specific documents that might have corroborated her claim
8 and reasonably found that she had not attempted to obtain
9 them or adequately explained their absence. See Yan Juan
10 Chen v. Holder, 658 F.3d 246, 253 (2d Cir. 2011)(per
11 curiam); Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir.
12 2007)(per curiam). In light of the agency’s properly
13 supported adverse credibility and corroboration findings, it
14 did not err in denying Miao’s applications for relief. See
15 Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir. 2006); Xue Hong
16 Yang v. U.S. Dep’t of Justice,
426 F.3d 520, 523 (2d Cir.
17 2005).
18 For the foregoing reasons, the petition for review is
19 DENIED.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
4
