14-4409 

Ni v. Lynch 

BIA 

Nelson, IJ 

A093 339 682

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 

2nd 4 day of February, two thousand sixteen. 

5 

6 PRESENT: 

7 REENA RAGGI,

8 GERARD E. LYNCH, 

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 HUI RONG NI, 

14 Petitioner, 

15 

16 v. 14-4409 

17 NAC 

18 LORETTA E. LYNCH, UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Ramesh K. Shrestha, New York, New 

24 York. 

25 

26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

27 Assistant Attorney General; Douglas 

28 E. Ginsburg, Assistant Director; 

29 Deitz P. Lefort, Trial Attorney, 
2 

1 Office of Immigration Litigation, 

2 United States Department of Justice, 

3 Washington, D.C. 

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 is 

8 DENIED. 

9 Petitioner Hui Rong Ni, a native and citizen of the People’s 

10 Republic of China, seeks review of an October 31, 2014, decision 

11 of the BIA affirming a March 20, 2013, decision of an Immigration 

12 Judge (“IJ”) denying Ni’s application for asylum, withholding 

13 of removal, and relief under the Convention Against Torture 

14 (“CAT”). In re Hui Rong Ni, No. A093 339 682 (B.I.A. Oct. 31, 

15 2014), aff’g No. A093 339 682 (Immig. Ct. N.Y. City Mar. 20, 

16 2013). We assume the parties’ familiarity with the underlying 

17 facts and procedural history in this case. 

18 Under the circumstances of this case, we have reviewed the 

19 IJ’s decision “as modified by the BIA’s decision,” i.e., minus 

20 the basis for denying relief that the BIA declined to consider 

21 (the untimely filing of the asylum application). See Xue Hong 

22 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 

23 The applicable standards of review are well established. See 
3 

1 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 

2 F.3d 162, 165-66 (2d Cir. 2008). 

3 The agency may, “[c]onsidering the totality of the 

4 circumstances,” base a credibility finding on inconsistencies 

5 in an asylum applicant’s statements and other record evidence 

6 “without regard to whether” they go “to the heart of the 

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

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

9 agency’s determination that Ni was not credible. 

10 As an initial matter, contrary to the Government’s 

11 contention, we consider Ni’s challenges to the agency’s adverse 

12 credibility determination exhausted because they were raised 

13 below, or are “subsidiary legal arguments, or arguments by 

14 extension,” of those arguments raised below. Gill v. INS, 420 

15 F.3d 82, 86 (2d Cir. 2005). The agency reasonably relied on 

16 the inconsistency between Ni’s testimony and her husband’s 

17 affidavit regarding whether her husband was present when family 

18 planning officials allegedly took her for a forced 

19 sterilization. See Xiu Xia Lin, 534 F.3d at 166-67. Ni’s 

20 explanations that she was estranged from her husband and had 

21 not read his affidavit were not compelling given that his 

22 affidavit was the only evidence she presented to corroborate 
4 

1 that her sterilization was forced. See Majidi v. Gonzales, 430 

2 F.3d 77, 80-81 (2d Cir. 2005). 

3 Ni argues that the agency erred in relying on her husband’s 

4 affidavit because the IJ did not admit it into evidence and found 

5 it “worthless” on the issue of whether her asylum application 

6 was timely. However, it was in the IJ’s discretion to permit 

7 cross-examination of Ni based on the affidavit, which was 

8 submitted by Ni and marked for identification, and to consider 

9 Ni’s responses in assessing credibility. See Xiao Ji Chen v. 

10 U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006); Singh 

11 v. Bd. of Immigration Appeals, 236 F. App’x 704, 706 (2d Cir. 

12 2007). Moreover, the IJ’s determination that the affidavit was 

13 “worthless” for purposes of establishing when Ni entered the 

14 United States did not infect the IJ’s decision to rely on Ni’s 

15 unpersuasive efforts to explain the inconsistencies between her 

16 version of events and that contained in her husband’s affidavit 

17 in connection with the sterilization claim. The affidavit 

18 indicates that Ni’s husband’s knowledge of her date of entry 

19 was based on information Ni provided him while his statements 

20 related to her alleged sterilization were based on firsthand 

21 knowledge. 
5 

1 Ni’s reliance on Bao v. Gonzales, 460 F.3d 426 (2d Cir. 

2 2006), for the proposition that it was inappropriate to consider 

3 her husband’s affidavit is misplaced. In Bao, the IJ relied 

4 on the independent asylum application of the petitioner’s 

5 husband to find the petitioner not credible. Id. at 431. 

6 Here, Ni submitted her husband’s affidavit as part of her own 

7 evidentiary materials, and there is no unfairness in relying 

8 on inconsistencies between the affidavit and her testimony in 

9 finding her not credible. 

10 In finding Ni not credible, the IJ also reasonably relied 

11 on inconsistencies in the record regarding her travel to and 

12 within the United States. See Xiu Xia Lin, 534 F.3d at 166-67 

13 & n.3. Ni’s explanations for these inconsistencies were not 

14 compelling. See Majidi, 430 F.3d at 80-81. 

15 Having found Ni not credible, the agency reasonably 

16 determined that Ni’s corroborating evidence did not 

17 rehabilitate her testimony that her sterilization was forced. 

18 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). 

19 The IJ reasonably declined to give much weight to Ni’s 

20 sterilization certificate, which was purportedly issued by a 

21 Chinese family planning committee. Putting to one side any 

22 issue as to the authenticity of the document, neither the 
6 

1 certificate nor a statement from Ni’s U.S.-based physician, 

2 while supporting her claim that she was sterilized, has any 

3 bearing on whether her sterilization was forced. 

4 Ni also argues that the IJ erred in failing to grant her 

5 an opportunity to correct deficiencies in her corroborating 

6 evidence. This argument lacks merit. While we have held that 

7 “where an IJ finds that corroborative evidence is required to 

8 support the asylum petition, we demand that immigration judges 

9 give refugee seekers an opportunity to address and, where 

10 possible, rectify perceived deficiencies in their testimony,” 

11 Ming Shi Xue v. Bd. of Immigration Appeals, 439 F.3d 111, 122 

12 (2d Cir. 2006), this rule does not apply where the need for 

13 corroborating evidence is based on an adverse credibility 

14 finding. See Balachova v. Mukasey, 547 F.3d 374, 382 n.5 (2d 

15 Cir. 2008); Jingzhi Jin v. Holder, 481 F. App’x 640, 641 (2d 

16 Cir. 2012). 

17 Ultimately, the agency’s adverse credibility 

18 determination is supported by substantial evidence. See

19 8 U.S.C. § 1158(b)(1)(B)(iii). That finding is dispositive of 

20 asylum, withholding of removal, and CAT relief because all three 

21 claims were based on the same factual predicate. See Paul v. 

22 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 
7 

1 For the foregoing reasons, the petition for review is 

2 DENIED. 

3 FOR THE COURT: 

4 Catherine O=Hagan Wolfe, Clerk