Ren v. Lynch , 631 F. App'x 33 ( 2015 )

13-3604
Ren v. Lynch
BIA
Nelson, IJ
A088 533 475
A088 533 476
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 25th day of November, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 XIAOMEI REN, SHAOYONG ZHAO,
14 Petitioners,
15
16 v. 13-3604
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONERS: Xiaomei Ren, pro se, Flushing, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Ernesto H. Molina, Jr.,
27 Assistant Director; Bernard A.
28 Joseph, Trial Attorney, Office of
29 Immigration Litigation, United
1 States Department of Justice,
2 Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Xiaomei Ren and Shaoyong Zhao, natives and citizens of
9 China, seek review of a August 26, 2013, decision of the BIA
10 affirming the March 9, 2011, decision of an Immigration
11 Judge (“IJ”) denying asylum, withholding of removal, and CAT
12 relief. In re Xiaomei Ren, Shaoyong Zhao, Nos. A088 533
13 475/476 (B.I.A. Aug. 26, 2013), aff’g Nos. A088 533 475/476
14 (Immig. Ct. N.Y. City Mar. 9, 2011). We assume the parties’
15 familiarity with the underlying facts and procedural history
16 in this case.
17 Under the circumstances of this case, we have reviewed
18 the IJ’s decision as modified by the BIA. Xue Hong Yang v.
19 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); see
20 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d
21 Cir. 2007) (explaining that we “consider only those issues
22 that formed the basis for [the BIA’s] decision.”). The
23 applicable standards of review are well established. See 8
24 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d
25 162, 165-66 (2d Cir. 2008) (per curiam).
2
1 For asylum applications, like Ren’s, governed by the
2 REAL ID Act, the agency may, “[c]onsidering the totality of
3 the circumstances,” base a credibility finding on an asylum
4 applicant’s “demeanor, candor, or responsiveness,” the
5 plausibility of her account, and inconsistencies in her
6 statements. 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin,
7 534 F.3d at 167. “We defer therefore to an IJ’s credibility
8 determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder
10 could make such an adverse credibility ruling.” Xiu Xia
11 Lin, 534 F.3d at 167.
12 Ren fails to challenge with any specificity the
13 agency’s findings that her testimony was implausible, that
14 she lacked corroborating evidence, and that she failed to
15 sustain her burden of proof. Rather, she argues ineffective
16 assistance of counsel, summarizes her claimed persecution,
17 and submits new evidence. Under such circumstances we
18 generally would deem abandoned any challenge to the adverse
19 credibility determination; but we have reviewed it in light
20 of Ren’s pro se status. See Yueqing Zhang v. Gonzales, 426
21 F.3d 540, 541 n.1 (2d Cir. 2005); Triestman v. Fed. Bureau
22 of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam).
3
1 As discussed below, the adverse credibility determination is
2 generally sound and is supported by substantial evidence.
3 The agency found that Ren’s account of past persecution
4 was implausible, relying in part on the country conditions
5 evidence. An implausibility finding may not be based on
6 “bald speculation,” Zhou Yun Zhang v. U.S. INS, 386 F.3d 66,
7 74 (2d Cir. 2004), overruled in part on other grounds by Shi
8 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d
9 Cir. 2007), but will be upheld if the IJ’s reasoning is
10 based on inferences “made available to the factfinder by
11 record facts, or even a single fact, viewed in the light of
12 common sense and ordinary experience,” Siewe v. Gonzales,
13 480 F.3d 160, 168-69 (2d Cir. 2007). The IJ found it
14 implausible that Ren was not fined or sterilized borders on
15 bald speculation, a finding attributed to the State
16 Department report on country conditions. However, although
17 the report states that families with two children (unlike
18 Ren’s) are pressured to undergo sterilization and that
19 “abortion and sterilization are important methods [of birth
20 planning], along with IUDS,” it does not state that women,
21 allegedly like Ren, who undergo multiple forced abortions,
22 are threatened with sterilization or identify the specific
4
1 circumstances under which women are forced to have IUDs.
2 Nor does it state that women who have abortions are
3 necessarily fined, though it discusses fines for births in
4 violation of the family planning policy. To this extent,
5 the agency’s implausibility finding is unduly speculative.
6 However, the IJ’s remaining implausibility findings are
7 not overly speculative and should be accorded deference
8 because they are “tethered to” the record. See id. Thus,
9 the IJ found implausible Ren’s testimony that she went for a
10 checkup to the same hospital in which she suffered a forced
11 abortion, notwithstanding that she knew she was pregnant.
12 Ren conceded that she “felt somewhat in fear because they
13 would want [her] to have the child aborted.” The IJ was not
14 required to credit her explanation that she went to that
15 hospital because it was “in partnership with [her] work
16 unit” or that she went to the internal department rather
17 than the obstetrician, as those explanations “do not defeat
18 a finding that the account is implausible.” Ying Li v.
19 Bureau of Citizenship and Immigration Services, 529 F.3d 79,
20 83 (2d Cir. 2008).
21 Further, the IJ reasonably found that Ren’s claim to
22 fear future persecution was undermined by her voluntary
23 returns to China after traveling to various countries. Kone
5
1 v. Holder, 596 F.3d 141, 150-51 (2d Cir. 2010) (although
2 voluntary return trips on their own are insufficient basis
3 for adverse credibility determination, they “may be relevant
4 to credibility in the exercise of an IJ’s informed
5 discretion”). The IJ also reasonably found that Ren’s fear
6 of the enforcement of the family planning policy was
7 speculative, given that she had had no children, has tried
8 unsuccessfully to become pregnant while in the United
9 States, and has had no contact with family planning
10 officials while still in China between 1999 and 2007. Cf.
11 Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005)
12 (holding that, absent solid support in the record for
13 petitioner’s assertion that he would be sterilized, fear was
14 “speculative at best” even though his wife was pregnant with
15 second child); Rui Ying Lin v. Gonzales, 445 F.3d 127 (2d
16 Cir. 2006) (finding that petitioner’s claim was not “too
17 speculative” where record showed that “she already had two
18 children, that she planned to have more, that she had gone
19 to great lengths to avoid being sterilized in China, and
20 that she had removed her IUD after escaping to the United
21 States”).
22 Because Ren’s implausible testimony called her
23 credibility into question, the agency could and did rely on
6
1 her failure to provide adequate corroborating evidence.
2 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per
3 curiam) (holding that failure to corroborate testimony may
4 bear on credibility). Although Ren submitted medical
5 evidence, including an x-ray and other certificates, the IJ
6 reasonably gave diminished weight to these documents. See
7 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d
8 Cir. 2006) (holding that weight afforded to evidence in
9 immigration proceedings lies largely within the discretion
10 of the agency). The x-ray report is titled, “Slip of
11 Fluoroscopy on the Slice of Breast by X-Ray,” but also notes
12 that “[i]n the pelvix, Type “T” coil is seen.” The IJ
13 doubted that one could detect an IUD by a chest x-ray, and
14 was further troubled by missing information, such as
15 inpatient or outpatient number, and that the x-ray report
16 was dated July 21, 2007 (after Ren arrived in the United
17 States) with no indication as to whether it was original or
18 a copy of an older record re-issued that day. The IJ was
19 also troubled by information missing from a number of
20 “Diagnosis Certificates” and the lack of evidence regarding
21 the stamps on these documents. See Xiao Ji Chen, 471 F.3d
22 at 342. The questionable nature of these documents further
23 supports the adverse credibility determination. Biao Yang,
24 496 F.3d at 273.
7
1 The implausibility of Ren’s testimony and the lack of
2 corroboration constitute substantial evidence that Ren
3 failed to give a credible account of persecution, and
4 thereby failed to sustain her burden of proof. See Xiao Ji
5 Chen, 471 F.3d at 338. The adverse credibility
6 determination was dispositive of asylum, withholding of
7 removal, and CAT relief because each of these claims share
8 the same factual predicate. Paul v. Gonzales, 444 F.3d 148,
9 156 (2d Cir. 2006).
10 Ren’s ineffective assistance claim must be presented to
11 the agency in the first instance and appears unsupported, as
12 her counsel before the agency did in fact appeal to the BIA.
13 Garcia-Martinez v. Dep’t of Homeland Security, 448 F.3d 511,
14 513-14 (2d Cir. 2006) (per curiam). We decline to consider
15 the new evidence that Ren submitted with her brief. 8
16 U.S.C. § 1252(b)(4)(A) (providing that review is limited to
17 the administrative record).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
23 oral argument in this petition is DENIED in accordance with
8
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
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9