     15-3734
     Yan v. Lynch
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A089 114 638
                         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 January, two thousand seventeen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            JOSÉ A. CABRANES,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   MEI QING YAN, AKA YAN-MEI QING,
14            Petitioner,
15
16                  v.                                               15-3734
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Thomas Ogden, Alhambra, California.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Anthony
27                                       P. Nicastro, Assistant Director;
28                                       Drew C. Brinkman, Trial Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       Washington, 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 Mei Qing Yan, a native and citizen of the

6    People’s Republic of China, seeks review of an October 22, 2015,

7    decision of the BIA affirming a March 26, 2014, decision of an

8    Immigration Judge (“IJ”) denying Yan’s application for asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).    In re Mei Qing Yan, No. A089 114 638 (B.I.A.

11   Oct. 22, 2015), aff’g No. A089 114 638 (Immig. Ct. N.Y. City

12   Mar. 26, 2014).     We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14        Under the circumstances of this case, we have reviewed both

15   the IJ’s and the BIA’s opinions “for the sake of completeness.”

16   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

17   2006).     The    applicable    standards       of       review      are   well

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

19   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).                 The agency may,

20   “[c]onsidering the totality of the circumstances, . . . base

21   a   credibility   determination    on     the   demeanor,         candor,    or

22   responsiveness     of   the   applicant    .    .    .    ,    the    inherent


                                       2
1    plausibility       of    the    applicant’s        .   .    .    account,”     and

2    inconsistencies in the record evidence “without regard to

3    whether”      those     inconsistencies       go   “to     the    heart   of   the

4    applicant’s claim.”            8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

5    Lin, 534 F.3d at 163-64.            Substantial evidence supports the

6    agency’s determination that Yan was not credible as to her claim

7    that Chinese family planning officials forced her to abort a

8    pregnancy.

9           The IJ reasonably relied on Yan’s evasive and unresponsive

10   answers on cross-examination, which are reflected in the

11   record.       See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v.

12   Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).

13          This    demeanor     finding     and    the     overall       credibility

14   determination         are   bolstered     by       record        inconsistencies

15   regarding whether Yan had two abortions (one forced and one

16   voluntary) as a result of China’s family planning policy or only

17   one.    See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109

18   (2d Cir. 2006); see also Xiu Xia Lin, 534 F.3d at 165-67 & n.3.

19   Yan explained that she failed to mention her second abortion

20   in her asylum application or on direct examination because it

21   was voluntary and thus not as relevant.                         The IJ was not

22   compelled to credit that explanation because Yan’s second


                                           3
1    abortion was directly relevant to her claim given her testimony

2    that she had the abortion due to officials’ earlier threats to

3    forcibly terminate any future pregnancies.           See Majidi, 430

4    F.3d at 80 (“A petitioner must do more than offer a ‘plausible’

5    explanation for his inconsistent statements to secure relief;

6    ‘he must demonstrate that a reasonable fact-finder would be

7    compelled to credit his testimony.’” (quoting Zhou Yun Zhang

8    v. INS, 386 F.3d 66, 76 (2d Cir. 2004))).           Furthermore, Yan

9    included less relevant information in her written statement.

10       The agency also did not err in relying on Yan’s testimony

11   that she married her second husband in order to enter the United

12   States   and   never   saw   him   again    after   U.S.   immigration

13   authorities denied her a visa for lack of a bona fide marriage.

14   This testimony indicated Yan’s willingness to lie to obtain U.S.

15   immigration benefits.    See Siewe v. Gonzales, 480 F.3d 160, 170

16   (2d Cir. 2007).

17       Having questioned Yan’s credibility, the agency reasonably

18   relied further on her failure to corroborate her testimony with

19   a statement from her husband.          See Biao Yang v. Gonzales, 496

20   F.3d 268, 273 (2d Cir. 2007).            Her husband had first-hand

21   knowledge of certain aspects of her claim, and his unlawful

22   status did not prevent him from submitting an affidavit or


                                        4
1    testifying on her behalf.   See Yan Juan Chen v. Holder, 658 F.3d

2    246, 253 (2d Cir. 2011)

3        Given the demeanor, inconsistency, and lack of

4    corroboration findings, the agency’s adverse credibility

5    determination is supported by substantial evidence.     8 U.S.C.

6    § 1158(b)(1)(B)(iii).    That determination is dispositive of

7    Yan’s claims for asylum, withholding of removal, and CAT relief

8    because all three claims are based on the same factual

9    predicate.    See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

10   2006).

11       For the foregoing reasons, the petition for review is

12   DENIED.    As we have completed our review, any stay of removal

13   that the Court previously granted in this petition is VACATED,

14   and any pending motion for a stay of removal in this petition

15   is DISMISSED as moot.    Any pending request for oral argument

16   in this petition is DENIED in accordance with Federal Rule of

17   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

18   34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk




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