19-4295 Xiao Ting v. Garland BIA Lurye, IJ A206 077 055

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 1st day of February, two thousand twenty- 5 two. 6 7 PRESENT: 8 RICHARD C. WESLEY, 9 JOSEPH F. BIANCO, 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 ZHU XIAO TING, AKA XIAO TING 15 ZHUO, 16 Petitioner, 17 18 v. 19-4295 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Mona Liza F. Lao, Esq., 26 New York, NY. 27 28 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 29 Assistant Attorney General; Greg 30 D. Mack, Senior Litigation 1 Counsel; Shahrzad Baghai, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a

8 Board of Immigration Appeals (“BIA”) decision, it is hereby

9 ORDERED, ADJUDGED, AND DECREED that the petition for review

10 is DENIED.

11 Petitioner Zhu Xiao Ting, a native and citizen of the

12 People’s Republic of China, seeks review of a November 29,

13 2019, decision of the BIA affirming a February 28, 2018,

14 decision of an Immigration Judge (“IJ”) denying Ting’s

15 application for asylum, withholding of removal, and relief

16 under the Convention Against Torture (“CAT”). In re Zhu Xiao

17 Ting, No. A206 077 055 (B.I.A. Nov. 29. 2019), aff’g No. A206

18 077 055 (Immig. Ct. N.Y. City Feb. 28, 2018). We assume the

19 parties’ familiarity with the underlying facts and procedural

20 history.

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

22 decision as modified by the BIA, i.e., minus the IJ’s findings

23 that the BIA did not reach. See Xue Hong Yang v. U.S. Dep’t

24 of Justice,

(2d Cir. 2005). The applicable

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

2 1 § 1252(b)(4)(B) (“[T]he administrative findings of fact are

2 conclusive unless any reasonable adjudicator would be

3 compelled to conclude to the contrary.”). “[W]e review the

4 agency’s decision for substantial evidence and must defer to

5 the factfinder’s findings based on such relevant evidence as

6 a reasonable mind might accept as adequate to support a

7 conclusion.” Singh v. Garland,

(2d Cir.

8 2021) (internal quotation marks omitted). “The scope of

9 review under the substantial evidence standard is exceedingly

10 narrow, and we will uphold the BIA’s decision unless the

11 petitioner demonstrates that the record evidence was so

12 compelling that no reasonable factfinder could fail to find

13 him eligible for relief.”

(internal quotation marks

14 omitted).

15 “Considering the totality of the circumstances, and all

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

17 determination on the demeanor, candor, or responsiveness of

18 the applicant . . ., the inherent plausibility of the

19 applicant’s . . . account, the consistency between the

20 applicant’s . . . written and oral statements . . ., the

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

22 consistency of such statements with other evidence of record

3 1 . . . without regard to whether an inconsistency, inaccuracy,

2 or falsehood goes to the heart of the applicant’s claim, or

3 any other relevant factor.”

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

4 “We defer . . . to an IJ’s credibility determination unless,

5 from 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 v. Mukasey,

(2d Cir.

8 2008); accord Hong Fei Gao v. Sessions,

(2d

9 Cir. 2018). Substantial evidence supports the agency’s

10 determination that Ting was not credible as to her claim that

11 police detained and beat her for attending an underground

12 church in China and that she feared persecution under the

13 family planning policy for having had a child out of wedlock.

14 In finding Ting not credible, the agency reasonably

15 relied on inconsistencies between her credible fear interview

16 and merits hearing regarding why she was detained and whether

17 police beat her. See

(b)(1)(B)(iii); Ming

18 Zhang v. Holder,

, 724–25 (2d Cir. 2009) (finding

19 a credible fear interview record reliable when it is

20 typewritten, demonstrates that the applicant understood the

21 questions, reflects questions about past harm or fear of

22 future harm, and is conducted with an interpreter). The

4 1 agency also reasonably relied on Ting’s inconsistent evidence

2 regarding how many times she had married, how she met her

3 current husband, and when she attended church. See 8 U.S.C.

4 § 1158(b)(1)(B)(iii). Ting did not provide compelling

5 explanations for the inconsistencies. See Majidi v.

6 Gonzales,

(2d Cir. 2005) (“A petitioner must

7 do more than offer a plausible explanation for his

8 inconsistent statements to secure relief; he must demonstrate

9 that a reasonable fact-finder would be compelled to credit

10 his testimony.” (internal quotation marks omitted)).

11 The agency also reasonably relied on her failure to

12 rehabilitate her testimony with reliable corroborating

13 evidence. See

(b)(1)(B)(ii) (“Where the trier

14 of fact determines that the applicant should provide evidence

15 that corroborates otherwise credible testimony, such evidence

16 must be provided unless the applicant does not have the

17 evidence and cannot reasonably obtain the evidence.”); Zou v.

18 Garland, No. 19-2003,

, at *1 (2d Cir. Sept.

19 9, 2021) (“Even absent an adverse credibility determination,

20 a lack of corroboration may be an independent basis for the

21 denial of relief.”). The agency reasonably declined to

22 credit statements from interested parties and acquaintances

5 1 who did not have first-hand knowledge of her alleged

2 persecution in China. See Y.C. v. Holder,

,

3 334 (2d Cir. 2013) (deferring to agency’s determination of

4 weight of evidence).

5 Given the inconsistencies and lack of reliable

6 corroboration, the agency’s adverse credibility determination

7 is supported by substantial evidence. See 8 U.S.C.

8 § 1158(b)(1)(B)(iii). That determination is dispositive of

9 asylum, withholding of removal, and CAT relief because all

10 three claims were based on the same factual predicate. See

11 Paul v. Gonzales,

, 156–57 (2d Cir. 2006).

12 For the foregoing reasons, the petition for review is

13 DENIED. All pending motions and applications are DENIED and

14 stays VACATED.

15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court 18

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