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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **2 nd** **day of February, two thousand sixteen.** 4 5 **PRESENT:** 6 **REENA RAGGI,** 7 **GERARD E. LYNCH,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **HUI RONG NI,** 13 Petitioner **,** 14 15 **v. 14-4409** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Ramesh K. Shrestha, New York, New 23 York. 24 25 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; Douglas 27 E. Ginsburg, Assistant Director; 28 Deitz P. Lefort, Trial Attorney, 292 Office of Immigration Litigation, 1 United 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 is 7

DENIED. 8 Petitioner Hui Rong Ni, a native and citizen of the People’s 9 Republic of China, seeks review of an October 31, 2014, decision 10 of the BIA affirming a March 20, 2013, decision of an Immigration 11 Judge (“IJ”) denying Ni’s application for asylum, withholding 12 of removal, and relief under the Convention Against Torture 13 (“CAT”). In re Hui Rong Ni, No. A093 339 682 (B.I.A. Oct. 31, 14 2014), aff’gNo. A093 339 682 (Immig. Ct. N.Y. City Mar. 20, 15 2013). We assume the parties’ familiarity with the underlying 16 facts and procedural history in this case. 17 Under the circumstances of this case, we have reviewed the 18 IJ’s decision “as modified by the BIA’s decision,” i.e., minus 19 the basis for denying relief that the BIA declined to consider 20 (the untimely filing of the asylum application). See Xue Hong 21 Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). 22 The applicable standards of review are well established. See 233 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey , 534 1 F.3d 162, 165-66 (2d Cir. 2008). 2 The agency may, “[c]onsidering the totality of the 3 circumstances,” base a credibility finding on inconsistencies 4 in an asylum applicant’s statements and other record evidence 5 “without regard to whether” they go “to the heart of the 6 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 7 Lin , 534 F.3d at 163-64. Substantial evidence supports the 8 agency’s determination that Ni was not credible. 9 As an initial matter, contrary to the Government’s 10 contention, we consider Ni’s challenges to the agency’s adverse 11 credibility determination exhausted because they were raised 12 below, or are “subsidiary legal arguments, or arguments by 13 extension,” of those arguments raised below. Gill v. INS , 420 14 F.3d 82, 86 (2d Cir. 2005). The agency reasonably relied on 15 the inconsistency between Ni’s testimony and her husband’s 16 affidavit regarding whether her husband was present when family 17 planning officials allegedly took her for a forced 18 sterilization. See Xiu Xia Lin , 534 F.3d at 166-67. Ni’s 19 explanations that she was estranged from her husband and had 20 not read his affidavit were not compelling given that his 21 affidavit was the only evidence she presented to corroborate 224 that her sterilization was forced. See Majidi v. Gonzales , 430 1 F.3d 77, 80-81 (2d Cir. 2005). 2 Ni argues that the agency erred in relying on her husband’s 3 affidavit because the IJ did not admit it into evidence and found 4 it “worthless” on the issue of whether her asylum application 5 was timely. However, it was in the IJ’s discretion to permit 6 cross-examination of Ni based on the affidavit, which was 7 submitted by Ni and marked for identification, and to consider 8 Ni’s responses in assessing credibility. See Xiao Ji Chen v. 9
U.S. Dep’t of Justice , 471 F.3d 315, 341-42 (2d Cir. 2006); Singh 10 v. Bd. of Immigration Appeals , 236 F. App’x 704, 706 (2d Cir. 11 2007). Moreover, the IJ’s determination that the affidavit was 12 “worthless” for purposes of establishing when Ni entered the 13 United States did not infect the IJ’s decision to rely on Ni’s 14 unpersuasive efforts to explain the inconsistencies between her 15 version of events and that contained in her husband’s affidavit 16 in connection with the sterilization claim. The affidavit 17 indicates that Ni’s husband’s knowledge of her date of entry 18 was based on information Ni pr ovided him while his statements 19 related to her alleged sterilization were based on firsthand 20 knowledge. 215 Ni’s reliance on Bao v. Gonzales , 460 F.3d 426 (2d Cir. 1 2006), for the proposition that it was inappropriate to consider 2 her husband’s affidavit is misplaced. In Bao , the IJ relied 3 on the independent asylum application of the petitioner’s 4 husband to find the petitioner not credible. Id. at 431. 5 Here, Ni submitted her husband’s affidavit as part of her own 6 evidentiary materials, and there is no unfairness in relying 7 on inconsistencies between the affidavit and her testimony in 8 finding her not credible. 9 In finding Ni not credible, the IJ also reasonably relied 10 on inconsistencies in the record regarding her travel to and 11 within the United States. See Xiu Xia Lin , 534 F.3d at 166-67 12 & n.3. Ni’s explanations for these inconsistencies were not 13 compelling. See Majidi , 430 F.3d at 80-81. 14 Having found Ni not credible, the agency reasonably 15 determined that Ni’s corroborating evidence did not 16 rehabilitate her testimony that her sterilization was forced. 17
See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). 18 The IJ reasonably declined to give much weight to Ni’s 19 sterilization certificate, which was purportedly issued by a 20 Chinese family planning committee. Putting to one side any 21 issue as to the authenticity of the document, neither the 226 certificate nor a statement from Ni’s U.S.-based physician, 1 while supporting her claim that she was sterilized, has any 2 bearing on whether her sterilization was forced. 3 Ni also argues that the IJ erred in failing to grant her 4 an opportunity to correct de ficiencies in her corroborating 5 evidence. This argument lacks merit. While we have held that 6 “where an IJ finds that corro borative evidence is required to 7 support the asylum petition, we demand that immigration judges 8 give refugee seekers an opportunity to address and, where 9 possible, rectify perceived deficiencies in their testimony,” 10 Ming Shi Xue v. Bd. of Immigration Appeals , 439 F.3d 111, 122 11 (2d Cir. 2006), this rule does not apply where the need for 12 corroborating evidence is based on an adverse credibility 13 finding. See Balachova v. Mukasey , 547 F.3d 374, 382 n.5 (2d 14 Cir. 2008); Jingzhi Jin v. Holder , 481 F. App’x 640, 641 (2d 15 Cir. 2012). 16 Ultimately, the agency’s adverse credibility 17 determination is supported by substantial evidence. See 18 8 U.S.C. § 1158(b)(1)(B)(iii). That finding is dispositive of 19 asylum, withholding of removal, and CAT relief because all three 20 claims were based on the same factual predicate. See Paul v. 21 Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 227 For the foregoing reasons, the petition for review is 1

DENIED. 2
FOR THE COURT: 3 Catherine O = Hagan Wolfe, Clerk 4