Ou v. Garland ( 2022 )

19-3928
Ou v. Garland
BIA
Christensen, IJ
A205 899 030
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 11th day of February, two thousand twenty-
5 two.
6
7 PRESENT:
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 WILLIAM J. NARDINI,
11 Circuit Judges.
12 _____________________________________
13
14 XIA OU,
15 Petitioner,
16
17 v. 19-3928
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Adedayo O. Idowu, Esq., New York,
25 NY.
26
27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
28 Assistant Attorney General; Justin
1 Markel, Senior Litigation Counsel;
2 Nancy Friedman, Senior Litigation
3 Counsel, Office of Immigration
4 Litigation, United States
5 Department of Justice, Washington,
6 DC.
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 Xia Ou, a native and citizen of the People’s
12 Republic of China, seeks review of a November 8, 2019 decision
13 of the BIA affirming a February 8, 2018 decision of an
14 Immigration Judge (“IJ”) denying asylum, withholding of
15 removal, and relief under the Convention Against Torture
16 (“CAT”). In re Xia Ou, No. A205 899 030 (B.I.A. Nov. 8,
17 2019), aff’g No. A205 899 030 (Immig. Ct. N.Y. City Feb. 8,
18 2018). We assume the parties’ familiarity with the
19 underlying facts and procedural history.
20 Under the circumstances presented here, we review both
21 the BIA’s and the IJ’s decisions. Wangchuck v. Dep’t of
22 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
23 applicable standards of review are well established. See 8
24 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
21 67, 76 (2d Cir. 2018) (reviewing adverse credibility
2 determination for substantial evidence).
3 “Considering the totality of the circumstances, and all
4 relevant factors, a trier of fact may base a credibility
5 determination on . . . the consistency between the
6 applicant’s . . . written and oral statements . . . , the
7 internal consistency of each such statement, [and] the
8 consistency of such statements with other evidence of record
9 . . . without regard to whether an inconsistency, inaccuracy,
10 or falsehood goes to the heart of the applicant’s claim, or
11 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
12 “We defer . . . to an IJ’s credibility determination
13 unless . . . it is plain that no reasonable fact-finder could
14 make such an adverse credibility ruling.” Xiu Xia Lin v.
15 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
16 Gao, 891 F.3d at 76.
17 Here, substantial evidence supports the IJ’s adverse
18 credibility determination. As an initial matter, the agency
19 reasonably relied on the record of Ou’s asylum interview
20 because it “contain[s] a meaningful, clear, and reliable
21 summary of the statements made . . . at the interview.”
3
1 Diallo v. Gonzales, 445 F.3d 624, 632 (2d Cir. 2006)
2 (quotation marks omitted). It shows an interpreter was
3 present and that Ou had a lawyer who helped her prepare an
4 application.
5 Ou gave inconsistent accounts in her testimony, asylum
6 interview, and application regarding how many times she was
7 pregnant, whether she had a miscarriage, and when her son was
8 born. See Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir.
9 2020) (“[E]ven a single inconsistency might preclude an alien
10 from showing that an IJ was compelled to find him credible.
11 Multiple inconsistencies would so preclude even more
12 forcefully.”); Xiu Xia Lin, 534 F.3d at 167 (allowing agency
13 to rely on cumulative effect of even minor inconsistencies).
14 The agency was not required to accept Ou’s explanations
15 that she was nervous at her interview and could not remember
16 what she said in her interview, whether she had another
17 pregnancy that ended in miscarriage, or when her son was born.
18 See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
19 petitioner must do more than offer a plausible explanation
20 for his inconsistent statements to secure relief; he must
21 demonstrate that a reasonable fact-finder would be compelled
4
1 to credit his testimony.” (quotation marks omitted)).
2 Moreover, Ou did not rehabilitate her credibility with
3 reliable corroboration. See Biao Yang v. Gonzales, 496 F.3d
4 268, 273 (2d Cir. 2007) (“An applicant’s failure to
5 corroborate h[er] . . . testimony may bear on credibility,
6 because the absence of corroboration in general makes an
7 applicant unable to rehabilitate testimony that has already
8 been called into question.”). Ou’s son’s birth certificate
9 was inconsistent with her initial testimony regarding his
10 date of birth. See Y.C. v. Holder, 741 F.3d 324, 332 (2d
11 Cir. 2013) (“We generally defer to the agency’s evaluation of
12 the weight to be afforded an applicant’s documentary
13 evidence.”). Her medical records from 2011 did not resolve
14 the inconsistencies regarding the number of pregnancies she
15 had or confirm that she had a child a year earlier. And the
16 agency was not required to credit letters from her mother and
17 aunts. See id. at 334 (upholding BIA’s decision to afford
18 little weight to letter from applicant’s spouse in China);
19 Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A.
20 2010) (finding letters from relatives and friends did not
21 provide substantial support for claim where authors were
5
1 “interested witnesses . . . not subject to cross-
2 examination”), overruled on other grounds by Hui Lin Huang v.
3 Holder, 677 F.3d 130 (2d Cir. 2012).
4 In sum, the inconsistencies and lack of reliable
5 corroboration provide substantial evidence for the adverse
6 credibility determination. See 8 U.S.C.
7 § 1158(b)(1)(B)(iii). The adverse credibility determination
8 is dispositive of asylum, withholding of removal, and CAT
9 relief because all three forms of relief are based on the
10 same discredited factual predicate. See Paul v. Gonzales,
11 444 F.3d 148, 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
6