Filed: Oct. 03, 2016
Latest Update: Mar. 03, 2020
Summary: 15-1303 Wu v. Lynch BIA Nelson, IJ A205 036 149/150 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 NOT
Summary: 15-1303 Wu v. Lynch BIA Nelson, IJ A205 036 149/150 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 NOTA..
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15-1303
Wu v. Lynch
BIA
Nelson, IJ
A205 036 149/150
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 3rd day of October, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 JIAO WU, MING LI, AKA LI MING,
14 Petitioners,
15
16 v. 15-1303
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONERS: Robert J. Adinolfi, New York, New
24 York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Melissa
28 Neiman-Kelting, Senior Litigation
29 Counsel; Allison Frayer, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 D.C.
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 Jiao Wu and Ming Li, natives and citizens of
6 the People’s Republic of China, seek review of an April 8, 2015,
7 decision of the BIA affirming an October 18, 2012, decision of
8 an Immigration Judge (“IJ”) denying Wu’s application for
9 asylum, withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Jiao Wu, Ming Li, Nos. A205 036
11 149/150 (B.I.A. Apr. 8, 2015), aff’g Nos. A205 035 149/150
12 (Immigr. Ct. N.Y.C. Oct. 18, 2012). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 We have reviewed both the IJ’s and the BIA’s opinions “for
16 the sake of completeness.” Wangchuck v. Dep’t of Homeland
17 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
18 standards of review are well established. See 8 U.S.C.
19 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-66
20 (2d Cir. 2008). For asylum applications like these, governed
21 by the REAL ID Act, the agency may, “[c]onsidering the totality
22 of the circumstances . . . base a credibility determination on
23 the demeanor, candor, or responsiveness of the applicant or
24 witness, the inherent plausibility of the applicant’s or
2
1 witness’s account,” and inconsistencies in an applicant’s
2 statements and other record evidence “without regard to
3 whether” they go “to the heart of the applicant’s claim.”
4 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
5 Although two of the IJ’s findings are unsupported by the
6 record, we conclude that remand would be futile because the
7 remainder of the findings are supported and constitute
8 substantial evidence supporting the IJ’s adverse credibility
9 determination. Accordingly, we deny the petition for review.
10 Two of the IJ’s findings do not support the adverse
11 credibility determination. First, although Wu testified that
12 her 2011 pregnancy was both planned and unplanned, the IJ did
13 not rely on that inconsistency. Instead, the IJ found an
14 inconsistency between Wu’s statement that the 2011 pregnancy
15 was accidental and Li’s written statement that they had
16 discussed having a second child many times. There is no
17 inconsistency: a couple can want a child without actively
18 planning a pregnancy. Second, the IJ’s finding that it was
19 implausible that Wu would not have sought permission to have
20 a second child, considering her testimony that a second child
21 was allowed under the family planning policy, relied on the
22 erroneous inconsistency finding.
23 The IJ’s remaining findings, however, provide substantial
24 evidence for the adverse credibility determination. The IJ
3
1 relied on two additional inconsistencies with firm support in
2 the record. See Xiu Xia Lin, 534 F.3d at 163-64. Wu’s medical
3 records reflected that she requested an abortion in 2011, but
4 she testified it was involuntary. Although Wu testified that
5 the medical records were mistaken, she did not explain how or
6 why the hospital would have interpreted a forced abortion as
7 voluntary, or why she submitted records that undermined her
8 claim without explaining the discrepancy up front. Majidi v.
9 Gonzales,
430 F.3d 77, 80 (2d Cir. 2005). This inconsistency,
10 standing alone, is sufficient to support the adverse
11 credibility determination because it relates to the basis of
12 Wu’s claim. Xian Tuan Ye v. Dep’t of Homeland Sec.,
446 F.3d
13 289, 294-95 (2d Cir. 2006).
14 Wu also testified that the government imposed a 10,000
15 renminbi fine, which officials sought to collect monthly, but
16 Li stated that officials tried to collect the fine once and then
17 forgot about it. Wu argues that the she should have been given
18 an opportunity to explain this inconsistency. She was. Wu’s
19 attorney declined the IJ’s invitation to offer additional
20 evidence after Li testified. Moreover, the inconsistency was
21 conspicuous and called into question whether Wu and Li were ever
22 fined for violating family planning laws, thereby casting doubt
23 on the entirety of Wu’s claim of persecution. See Ming Shi Xue
24 v. BIA,
439 F.3d 111, 114 (2d Cir. 2006).
4
1 The adverse credibility determination is further supported
2 by the lack of reliable corroborating evidence. Biao Yang v.
3 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). First, Li’s
4 testimony and unpersuasive demeanor did not rehabilitate Wu.
5 He gave inconsistent testimony regarding the fine and
6 frequently looked toward Wu before answering questions. See
7 Jin Chen v. U.S. Dep’t of Justice,
426 F.3d 104, 113 (2d Cir.
8 2005) (holding that we generally defer to IJ’s demeanor
9 findings). In addition, Wu’s medical records of her 2011
10 abortion undermined her claim, and she failed to produce records
11 of the 2007 abortion, which she alleged occurred at the same
12 hospital.
13 In spite of the two errors relating to whether the 2011
14 pregnancy was planned, we conclude that remand is futile. Cao
15 He Lin v. U.S. Dep’t of Justice,
428 F.3d 391, 401 (2d Cir. 2005).
16 The inconsistency between Wu’s testimony and medical records
17 regarding her 2011 abortion is sufficient, standing alone, to
18 support the adverse credibility determination. Xian Tuan Ye,
19 446 F.3d at 294-95. The adverse credibility finding is further
20 supported by the inconsistency regarding the fine, as well as
21 Wu’s failure to corroborate her claim with reliable evidence.
22 Accordingly, the “totality of the circumstances” supports the
23 adverse credibility determination. See Xiu Xia Lin,
534 F.3d
24 at 167. That determination is dispositive of asylum,
5
1 withholding of removal, and CAT relief because all three forms
2 of relief relied on the same factual predicate. See Paul v.
3 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED.
6 FOR THE COURT:
7 Catherine O=Hagan Wolfe, Clerk
6
