Filed: Jun. 16, 2016
Latest Update: Mar. 02, 2020
Summary: 15-715 Yang v. Lynch BIA Wright, IJ A200 172 909 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 NOTATI
Summary: 15-715 Yang v. Lynch BIA Wright, IJ A200 172 909 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..
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15-715
Yang v. Lynch
BIA
Wright, IJ
A200 172 909
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 16th day of June, two thousand sixteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 BARRINGTON D. PARKER,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 FAN YANG, AKA FAN YAN, AKA FAN DAI,
14 Petitioner,
15
16 v. 15-715
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Zhen Liang Li, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Anthony
27 W. Norwood, Senior Litigation
28 Counsel; Siu P. Wong, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 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 Petitioner Fan Yang, a native and citizen of the People’s
6 Republic of China, seeks review of a February 9, 2015, decision
7 of the BIA, affirming a May 2, 2013, decision of an Immigration
8 Judge (“IJ”) denying Yang’s application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Fan Yang, No. A200 172 909 (B.I.A. Feb. 9, 2015),
11 aff’g No. A200 172 909 (Immig. Ct. N.Y. City May 2, 2013). We
12 assume the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we review both the
15 IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432 F.3d
16 391, 394 (2d Cir. 2005). The applicable standards of review
17 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
18 v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
19 For asylum applications like Yang’s, governed by the REAL
20 ID Act, the agency may, “[c]onsidering the totality of the
21 circumstances,” base an adverse credibility determination on
22 an asylum applicant’s “demeanor, candor, or responsiveness,”
23 the plausibility of her account, and inconsistencies in her or
2
1 her witness’s statements, “without regard to whether” they go
2 “to the heart of the applicant’s claim.” 8 U.S.C.
3 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
4 defer . . . to an IJ’s credibility determination unless, from
5 the totality of the circumstances, it is plain that no
6 reasonable fact-finder could make such an adverse credibility
7 ruling.” Xiu Xia
Lin, 534 F.3d at 167. As discussed below,
8 substantial evidence supports the adverse credibility
9 determination.
10 The adverse credibility determination was properly based
11 on inconsistencies between Yang and her witness’s testimony
12 concerning Yang’s church attendance in the United States. Xiu
13 Xia
Lin, 534 F.3d at 166-67. The agency correctly observed,
14 inter alia, that Yang testified her witness did not teach Bible
15 study on the Sunday before the hearing and that Yang did not
16 attend the class because she went home after the service, but
17 Yang’s witness testified that she did teach the class and Yang
18 had attended. The agency also properly observed that these
19 inconsistencies were all the more striking because Yang could
20 not testify consistently with her witness with respect to what
21 happened just a few days ago. See Xiu Xia
Lin, 534 F.3d at 167.
22 The agency did not err in finding Yang’s credibility
23 further undermined by her lack of corroborating evidence. Biao
3
1 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency
2 correctly observed that Yang had testified that she had a CT
3 scan following her beating in China, but her medical records
4 did not indicate such. That omission is the functional
5 equivalent of an inconsistency for credibility purposes. Xiu
6 Xia
Lin, 534 F.3d at 166 n.3. The agency also correctly
7 observed that Yang had not submitted any evidence to corroborate
8 her arrest and detention in China other than an unauthenticated
9 fine receipt. The agency did not err in declining to credit
10 the receipt. See Cao He Lin v. U.S. Dep’t of Justice,
428 F.3d
11 391, 403 (2d Cir. 2005); see also Qin Wen Zheng v. Gonzales,
12
500 F.3d 143, 146-49 (2d Cir. 2007).
13 In light of the inconsistencies between Yang and her
14 witness’s testimony, which concerned an event that had
15 supposedly taken place just a few days before that testimony,
16 the inconsistency between Yang’s testimony and medical
17 evidence, and her lack of corroboration, the totality of the
18 circumstances supports the agency’s adverse credibility
19 determination. See Xiu Xia
Lin, 534 F.3d at 167. Because
20 Yang’s claims for asylum, withholding of removal, and CAT relief
21 all relied on the same factual predicate, the adverse
22 credibility determination is dispositive. Paul v. Gonzales,
23
444 F.3d 148, 156-57 (2d Cir. 2006).
4
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
