19-4295

Xiao Ting v. Garland

BIA

Lurye, IJ

A206 077 055

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 

New York, on the 1st 4 day of February, two thousand twenty5 two.

6

7 PRESENT:

8 RICHARD C. WESLEY,

9 JOSEPH F. BIANCO,

10 STEVEN J. MENASHI,

11 Circuit Judges.

12 _____________________________________

13

14 ZHU XIAO TING, AKA XIAO TING 

15 ZHUO,

16 Petitioner,

17

18 v. 19-4295

19 NAC

20 MERRICK B. GARLAND, UNITED 

21 STATES ATTORNEY GENERAL,

22 Respondent.

23 _____________________________________

24

25 FOR PETITIONER: Mona Liza F. Lao, Esq., 

26 New York, NY.

27

28 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 

29 Assistant Attorney General; Greg 

30 D. Mack, Senior Litigation 
2

1 Counsel; Shahrzad Baghai, Trial 

2 Attorney, Office of Immigration 

3 Litigation, United States 

4 Department of Justice, Washington, 

5 DC.

6

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 Zhu Xiao Ting, a native and citizen of the 

12 People’s Republic of China, seeks review of a November 29, 

13 2019, decision of the BIA affirming a February 28, 2018, 

14 decision of an Immigration Judge (“IJ”) denying Ting’s 

15 application for asylum, withholding of removal, and relief 

16 under the Convention Against Torture (“CAT”). In re Zhu Xiao 

17 Ting, No. A206 077 055 (B.I.A. Nov. 29. 2019), aff’g No. A206 

18 077 055 (Immig. Ct. N.Y. City Feb. 28, 2018). We assume the 

19 parties’ familiarity with the underlying facts and procedural 

20 history.

21 Under the circumstances, we have reviewed the IJ’s 

22 decision as modified by the BIA, i.e., minus the IJ’s findings

23 that the BIA did not reach. See Xue Hong Yang v. U.S. Dep’t 

24 of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable 

25 standards of review are well established. See 8 U.S.C. 
3

1 § 1252(b)(4)(B) (“[T]he administrative findings of fact are 

2 conclusive unless any reasonable adjudicator would be 

3 compelled to conclude to the contrary.”). “[W]e review the 

4 agency’s decision for substantial evidence and must defer to 

5 the factfinder’s findings based on such relevant evidence as 

6 a reasonable mind might accept as adequate to support a 

7 conclusion.” Singh v. Garland, 11 F.4th 106, 113 (2d Cir. 

8 2021) (internal quotation marks omitted). “The scope of 

9 review under the substantial evidence standard is exceedingly 

10 narrow, and we will uphold the BIA’s decision unless the 

11 petitioner demonstrates that the record evidence was so 

12 compelling that no reasonable factfinder could fail to find 

13 him eligible for relief.” Id. (internal quotation marks 

14 omitted).

15 “Considering the totality of the circumstances, and all 

16 relevant factors, a trier of fact may base a credibility 

17 determination on the demeanor, candor, or responsiveness of 

18 the applicant . . ., the inherent plausibility of the 

19 applicant’s . . . account, the consistency between the 

20 applicant’s . . . written and oral statements . . ., the 

21 internal consistency of each such statement, [and] the 

22 consistency of such statements with other evidence of record
4

1 . . . without regard to whether an inconsistency, inaccuracy, 

2 or falsehood goes to the heart of the applicant’s claim, or 

3 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). 

4 “We defer . . . to an IJ’s credibility determination unless, 

5 from the totality of the circumstances, it is plain that no 

6 reasonable fact-finder could make such an adverse credibility 

7 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 

8 2008); accord Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d 

9 Cir. 2018). Substantial evidence supports the agency’s 

10 determination that Ting was not credible as to her claim that 

11 police detained and beat her for attending an underground 

12 church in China and that she feared persecution under the 

13 family planning policy for having had a child out of wedlock.

14 In finding Ting not credible, the agency reasonably 

15 relied on inconsistencies between her credible fear interview 

16 and merits hearing regarding why she was detained and whether 

17 police beat her. See 8 U.S.C. § 1158(b)(1)(B)(iii); Ming 

18 Zhang v. Holder, 585 F.3d 715, 724–25 (2d Cir. 2009) (finding 

19 a credible fear interview record reliable when it is 

20 typewritten, demonstrates that the applicant understood the 

21 questions, reflects questions about past harm or fear of 

22 future harm, and is conducted with an interpreter). The 
5

1 agency also reasonably relied on Ting’s inconsistent evidence 

2 regarding how many times she had married, how she met her 

3 current husband, and when she attended church. See 8 U.S.C. 

4 § 1158(b)(1)(B)(iii). Ting did not provide compelling 

5 explanations for the inconsistencies. See Majidi v. 

6 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 

7 do more than offer a plausible explanation for his 

8 inconsistent statements to secure relief; he must demonstrate 

9 that a reasonable fact-finder would be compelled to credit 

10 his testimony.” (internal quotation marks omitted)). 

11 The agency also reasonably relied on her failure to 

12 rehabilitate her testimony with reliable corroborating 

13 evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“Where the trier 

14 of fact determines that the applicant should provide evidence 

15 that corroborates otherwise credible testimony, such evidence 

16 must be provided unless the applicant does not have the 

17 evidence and cannot reasonably obtain the evidence.”); Zou v. 

18 Garland, No. 19-2003, 2021 WL 4097775, at *1 (2d Cir. Sept. 

19 9, 2021) (“Even absent an adverse credibility determination, 

20 a lack of corroboration may be an independent basis for the 

21 denial of relief.”). The agency reasonably declined to 

22 credit statements from interested parties and acquaintances
6

1 who did not have first-hand knowledge of her alleged 

2 persecution in China. See Y.C. v. Holder, 741 F.3d 324, 332, 

3 334 (2d Cir. 2013) (deferring to agency’s determination of 

4 weight of evidence).

5 Given the inconsistencies and lack of reliable 

6 corroboration, the agency’s adverse credibility determination 

7 is supported by substantial evidence. See 8 U.S.C. 

8 § 1158(b)(1)(B)(iii). That determination is dispositive of 

9 asylum, withholding of removal, and CAT relief because all 

10 three claims were based on the same factual predicate. See 

11 Paul v. Gonzales, 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

18