18-2595 Bao v. Barr BIA Poczter, IJ A087 441 647 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 19th day of February, two thousand twenty. 5 6 PRESENT: 7 DENNIS JACOBS, 8 JOSÉ A. CABRANES, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _____________________________________ 12 13 YUE YE BAO, 14 Petitioner, 15 16 v. 18-2595 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Robert J. Adinolfi, New York, NY. 24 25 FOR RESPONDENT: Joseph H. Hunt, Assistant 26 Attorney General; Anthony P. 27 Nicastro, Assistant Director; 28 Yanal H. Yousef, Trial Attorney, 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. 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 Yue Ye Bao, a native and citizen of the

10 People’s Republic of China, seeks review of an August 14,

11 2018 decision of the BIA affirming a November 1, 2013 decision

12 of an Immigration Judge (“IJ”) denying Bao’s application for

13 asylum, withholding of removal, and relief under the

14 Convention Against Torture (“CAT”). In re Yue Ye Bao, No.

15 A087 441 647 (B.I.A. Aug. 14, 2018), aff’g No. A087 441 647

16 (Immig. Ct. N.Y. City Nov. 1, 2013). We assume the parties’

17 familiarity with the underlying facts and procedural history.

18 Validity of Removal Proceedings

19 Bao first argues that, under the Supreme Court’s decision

20 in Pereira v. Sessions,

(2018), the Notice to

21 Appear (“NTA”) charging her as removable was insufficient to

22 vest jurisdiction with the IJ because it did not contain a

23 hearing date or time. We have held, however, that Pereira

24 does not “void jurisdiction in cases in which an NTA omits a

2 1 hearing time or place . . . so long as a notice of hearing

2 specifying this information is later sent to the alien.”

3 Banegas Gomez v. Barr,

(2d Cir. 2019).

4 Accordingly, because Bao unquestionably received notice of

5 her hearings at which she appeared, her argument that her NTA

6 was insufficient to commence removal proceedings is

7 foreclosed by Banegas Gomez.

8 Adverse Credibility Determination

9 Under the circumstances, we have reviewed the IJ’s

10 decision as modified by the BIA, i.e., minus the findings on

11 which the BIA did not rely. See Xue Hong Yang v. U.S. Dep’t

12 of Justice,

(2d Cir. 2005). The applicable

13 standards of review are well established. See 8 U.S.C.

14 § 1252(b)(4)(B); Hong Fei Gao v. Sessions,

, 76

15 (2d Cir. 2018).

16 “Considering the totality of the circumstances, and all

17 relevant factors, a trier of fact may base a credibility

18 determination on . . . the inherent plausibility of the

19 applicant’s or witness’s account, the consistency between the

20 applicant’s or witness’s written and oral statements . . .

21 [and] the internal consistency of each such statement . . .

22 without regard to whether an inconsistency, inaccuracy, or

3 1 falsehood goes to the heart of the applicant’s claim.”

2

(b)(1)(B)(iii); see also Xiu Xia Lin v.

3 Mukasey,

, 163–64 (2d Cir. 2008). Substantial

4 evidence supports the agency’s determination that Bao was not

5 credible as to her claim that family planning officials forced

6 her to terminate a pregnancy and sought to sterilize her for

7 violating China’s family planning policy.

8 The agency reasonably relied on a series of

9 inconsistencies in Bao’s testimony and between her testimony

10 and other evidence. See

(b)(1)(B)(iii).

11 Bao’s testimony that she lived in hiding and on the run from

12 family planning officials was implausible and inconsistent

13 with her testimony that she owned and openly operated a store

14 in Hangzhou for six years, that she owned and openly operated

15 a store in Shanghai for four years, that she twice travelled

16 to Hong Kong to purchase merchandise for her stores, and that

17 she frequently went back to her hometown. Bao’s testimony

18 that her husband lived in Inner Mongolia while she lived in

19 hiding by herself in Shanghai was inconsistent with her

20 husband’s letter that he moved with her to Shanghai. And Bao

21 made varying statements regarding how much she and her husband

22 were fined under the family planning policy. Similarly, the

4 1 agency did not err in relying on Bao’s mother’s failure to

2 mention in her letter that she received a family planning

3 notice directing Bao to report for sterilization. See Hong

4 Fei Gao,

(“[T]he probative value of a witness’s

5 prior silence on particular facts depends on whether those

6 facts are ones the witness would reasonably have been expected

7 to disclose.”). Bao could not compellingly explain these

8 inconsistencies and omissions. See Majidi v. Gonzales, 430

9

, 80 (2d Cir. 2005) (“A petitioner must do more than

10 offer a plausible explanation for his inconsistent statements

11 to secure relief; he must demonstrate that a reasonable fact-

12 finder would be compelled to credit his testimony.” (internal

13 quotation marks omitted)).

14 Having questioned Bao’s credibility, the agency

15 reasonably relied further on her failure to rehabilitate her

16 testimony with reliable corroborating evidence. “An

17 applicant’s failure to corroborate his or her testimony may

18 bear on credibility, because the absence of corroboration in

19 general makes an applicant unable to rehabilitate testimony

20 that has already been called into question.” Biao Yang v.

21 Gonzales,

(2d Cir. 2007). The agency

22 reasonably declined to credit the letters from Bao’s family

5 1 members because, in addition to the inconsistencies noted

2 above, the authors were interested witnesses who were not

3 available for cross-examination. See Y.C. v. Holder, 741

, 332 (2d Cir. 2013) (“We generally defer to the

5 agency’s evaluation of the weight to be afforded an

6 applicant’s documentary evidence.”); see also In re H-L-H- &

7 Z-Y-Z-,

(B.I.A. 2010) (finding that

8 letters from alien’s friends and family were insufficient to

9 provide substantial support for alien’s claims because they

10 were from interested witnesses not subject to cross-

11 examination), overruled on other grounds by Hui Lin Huang v.

12 Holder,

, 133–38 (2d Cir. 2012).

13 Given the inconsistency and corroboration findings, the

14 agency’s adverse credibility determination is supported by

15 substantial evidence. See

(b)(1)(B)(iii).

16 That determination was dispositive of asylum, withholding of

17 removal, and CAT relief because all three forms of relief

18 were based on the same factual predicate. See Paul v.

19 Gonzales,

, 156–57 (2d Cir. 2006). Contrary to

20 Bao’s contention, the IJ found her not credible as to the

21 entirety of her testimony, including her forced abortion

22 claim.

6 1 Competency

2 We need not review the agency’s competency determination

3 because Bao has abandoned that issue by not raising it in her

4 brief. See Yueqing Zhang v. Gonzales,

, 541 n.1,

5 545 n.7 (2d Cir. 2005). Nevertheless, we note that the agency

6 took appropriate measures to determine competency and

7 reasonably concluded that Bao was competent to proceed. See

8 In re M-A-M-,

, 479–83 (B.I.A. 2011).

9 For the foregoing reasons, the petition for review is

10 DENIED. All pending motions and applications are DENIED and

11 stays VACATED.

12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court

7