15-2402
    Song v. Yates
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A087 980 868
                         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.

         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
    27th day of January , two thousand seventeen.

    PRESENT:
             DENNIS JACOBS,
             PETER W. HALL,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.
    _____________________________________

    XIANG YUAN SONG,
             Petitioner,

                    v.                                               15-2402
                                                                     NAC
    SALLY Q. YATES, ACTING UNITED
    STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Jay Ho Lee, New York, N.Y.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Anthony
                                         P. Nicastro, Acting Assistant


     Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting
    Attorney General Sally Q. Yates is automatically substituted for
    former Attorney General Loretta E. Lynch as Respondent.
                            Director; Bernard A. Joseph, Trial
                            Attorney, Office of Immigration
                            Litigation, United States
                            Department of Justice, Washington,
                            D.C.

    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 Xiang Yuan Song, a native and citizen of China,

seeks review of a January 22, 2014, decision of the BIA,

affirming a May 2, 2012, decision of an Immigration Judge (“IJ”)

denying Song’s application for asylum, withholding of removal,

and relief under the Convention Against Torture (“CAT”).      In

re Xiang Yuan Song, No. A087 980 868 (B.I.A. Jan. 22, 2014),

aff’g No. A087 980 868 (Immig. Ct. N.Y.C. May 2, 2012).       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 BIA’s decisions.    Guan v. Gonzales, 

,

394 (2d Cir. 2005).   The applicable standards of review are well

established.   See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

Mukasey, 

, 165-66 (2d Cir. 2008).



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      For asylum applications like Song’s, governed by the REAL

ID Act, the agency may, “[c]onsidering the totality of the

circumstances,” base a negative credibility finding on an

asylum applicant’s “demeanor, candor, or responsiveness,” the

plausibility   of   her   account,    and   inconsistencies   in   her

statements “without regard to whether” the inconsistencies go

“to   the   heart   of    the   applicant’s    claim.”    8   U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia 

.             “We

defer . . . to an IJ’s credibility determination unless, from

the totality of the circumstances, it is plain that no

reasonable fact-finder could make such an adverse credibility

ruling.”    Xiu Xia 

.      Substantial evidence

supports the agency’s determination that Song was not credible.

      The agency’s determination that Song lacked credibility

with respect to her alleged religious persecution, which Song

does not challenge, infects her forced abortion claim as well.

Siewe v. Gonzales, 

, 170 (2d Cir. 2007) (holding

that “a single false document or a single instance of false

testimony may (if attributable to the petitioner) infect the

balance of the alien’s uncorroborated or unauthenticated

evidence.”).    Furthermore, in considering the totality of the

circumstances, as it was required to do, the agency properly

                                  3
examined Song’s inconsistent statements and demeanor problems

as a whole.       See 8 U.S.C. § 1158(b)(1)(B)(iii).

     Moreover, even if Song’s forced abortion claim is assessed

in isolation, substantial evidence supports the agency’s

adverse credibility determination.           Inconsistencies in Song’s

testimony called into question the timeline of her pregnancy

and undermined her claim as a whole.           Song testified that she

was required to have an abortion in part because she was under

20 years old.      But she later conceded that she would have been

20   or   21    years   old    when   she   became   pregnant.    Song’s

inconsistent testimony regarding whether and when she finished

school called into question whether she was running a business

and, thus, whether she met the man by whom she became pregnant

through that business.           These discrepancies reasonably left

the agency with the impression that Song was not recalling her

own lived experience.          Contrary to Song’s position, the agency

may rely on inconsistencies regarding collateral issues where,

as here, the totality of the circumstances reflects a lack of

credibility.       8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 

.

     The       agency   also    reasonably    concluded    that   Song’s

corroborating evidence, including her abortion certificate and

                                      4
letters from family in China, was not sufficient to rehabilitate

her testimony.   See Biao Yang v. Gonzales, 

, 273

(2d Cir. 2007); see also Lin v. Gonzales, 

, 400 (2d

Cir. 2006) (concluding that 1998 State Department report, which

found no evidence that Chinese authorities issue abortion

certificates for involuntary abortions, was probative evidence

that agency could rely on in assessing plausibility of claim).

Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)

(concluding that document drafted by interested witness not

subject to cross examination was entitled to little weight),

overruled on other grounds by Hui Lin Huang v. Holder, 

(2d Cir. 2012).

    Song also challenges the agency’s reliance on her testimony

regarding a two-month trip to Japan and her use of fraud to

obtain a visa to the United States.   These arguments lack merit.

Her testimony on these issues was inconsistent and evasive.    8

U.S.C. § 1158(b)(1)(B)(iii).    Song’s return to China after a

two-month trip to Japan in 2008 called into question the

plausibility of her religious persecution claim and cast doubt

on her subjective fear of persecution in China.    The IJ was not

compelled to credit Song’s explanation that Japan did not have

as much religious freedom as the United States because it does

                               5
not explain why Song went back to China despite her fear of

persecution.     See Majidi v. Gonzales, 

, 80-81 (2d

Cir. 2005).

      And, as the agency found, Song’s testimony regarding her

efforts to obtain a U.S. visa was nonresponsive and equivocal.

Song initially insisted that she did not know the documents

submitted to obtain the visa were fraudulent, but later

testified that she spent three days before her consular

interview practicing her false story.           Song’s argument that

this fraud cannot be considered in assessing credibility is

misplaced.     Although the agency may not rely on false documents

created to flee imminent persecution, Rui Ying Lin v. Gonzales,

,   133   (2d   Cir.   2006),   Song’s   situation   is

distinguishable.     The only imminent persecution alleged was on

account of her religion, and she does not contest her lack of

credibility on that claim.

      Given the IJ’s demeanor finding, which Song does not

challenge, and the multiple inconsistencies, the totality of

the circumstances supports the agency’s credibility finding.

Xiu Xia 

.     Because Song’s claims for asylum,

withholding of removal, and CAT relief were based on the same

factual predicate, the adverse credibility determination is

                                   6
dispositive of all three forms of relief.   Paul v. Gonzales,

, 156-57 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED.

                           FOR THE COURT:
                           Catherine O=Hagan Wolfe, Clerk




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