19

- 4295 Xiao Ting v. Garland BIA Lurye , IJ A 206 077 055 

### 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 APP**  **ENDIX 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**  1 **for the Second Circuit, held a**  **t the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 1**  **st da**  **y of February**  **, two thousand**  **twenty**

  4 ** two**

**.** 5 6 **PRESENT:** 7 **RICHARD C. WESLEY ,**  8 **JOSEPH F. BIANCO ,**  9 **STEVEN J. MENASHI,** 10 **Circuit Judges.** 11

**_____________________________________** 12 13 **ZHU XIAO TING, AKA XIAO TING** 14 **ZHUO ,**  15 **Petitioner ,**  16 17
**v. 19** 

**- 4295**  18 **NAC** 19 **MERRICK B. GARLAND, UNITED**  20 **STATES ATTORNEY GENERAL**  **,** 21 **R espondent** 

**.** 22

**_____________________________________** 23 24 **FOR PETITIONER :**  Mona Liza F. Lao , Esq. , 25 New York , NY. 26 27 **FOR RESPONDENT:** Jeffrey Bossert Clark , Acting 28 Assistant Attorney General; Greg 29 D. Mack , Senior Litigation 302 Counsel ; Shahrzad Baghai , Trial 1 Attorney , Office of Immigration 2 Litigation , United States 3 Department of Justice, Washington, 4 DC. 5 6 U PON DUE CONSIDERATION of this petition for review of a 7
Board of Immigration Appeals (“BIA”) decision, it is hereby 8
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 9

is DENIED. 10

Petitioner Zhu Xiao Ting , a native and citizen of the 11
People’s Republic of China , seeks review of a November 29, 12

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

decision of an I mmigration Judge (“IJ”) d enying Ting ’s 14
application for asylum, withholding of removal , and relief 15
under the Convention Against Torture (“CAT”). In re Zhu Xiao 16
Ting , No. A 206 077 055 (B.I.A. Nov. 29. 2019 ), aff’g No. A 206 17

077 055 (Immig. Ct. N.Y. City Feb. 28, 2018 ). We assume the 18
parties’ familiarity with the underl ying facts and procedural 19

his tory. 20

Under the circumstances, we have reviewed the IJ’s 21
decision as modified by the BIA, i.e., minus the IJ’s finding s 22

that the BIA did not reach

. See Xue Hong Yang v. U.S. Dep’t 23

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

standards of review are well est ablished. See 8 U.S.C. 253 § 1252(b)(4)(B) (“[T]he administrative findings of fact are 1
conclusive unless any reasonable adjudicator would be 2
compelled to conclude to the contr ary.”). “[W]e review the 3

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

the factfinder ’ s findings based on such relevant evidence as 5
a reasonable mind might accept as adequate to support a 6

conclusion.” Singh v. Garland , 11 F.4th 106, 113 (2d Cir. 7
2021) (internal quotation marks omitted). “The scope of 8
review under the substantial evidence standard is exceedingly 9
narrow, and we will uphold the BIA ’ s decision unless the 10
petitioner demonstrates that the record evidence was so 11
compelling that no reasonable factfinder could fail to find 12
him eligible for relief.” Id . (internal quotation marks 13

omitted). 14
“Considering the totality of the circumstances, and all 15
relevant factors, a trier of fact may base a credibility 16

determination on the demeanor, candor, or responsiveness of 17
the applicant

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

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

. . . written and oral statements

. . ., the 20
internal consistency of each such statement , [and] the 21
consistency of such statements with other evidence of record 224 . . . without regard to whether an inconsistency, inaccur acy, 1
or falsehood goes to the heart of the applicant’s claim, or 2
any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii )

. 3

“We defer . . . to an IJ’s credibility determination unless, 4
from the totality of the circumstances, it is plain that no 5

reasonable fact

- finder could make such an adverse credibility 6
ruling.” Xiu Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 7

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

Cir. 2018)

. Substantial evidence supports the agency’s 9

determination that Ting was not credible as to her claim that 10
police detained and beat her for attending an un derground 11

church in China and that she feared persecution under the 12
family planning policy for having had a child out of wedlock

. 13
In finding Ting not credible , the agency reasonably 14

relied on inconsistencies between her credible fear interview 15
and merits hearing regarding why sh e was detained and whether 16
police beat her. See 8 U.S.C. § 1158(b)(1)(B)(iii) ; Ming 17
Zhang v. Holder , 585 F.3d 715, 724

– 25 (2d Cir. 2009) (finding 18

a credible fear interview record reliable when it is 19
typewritten, demonstrates that the applicant understood the 20
questions, reflects questions about past harm or fear of 21
future harm, and is conducted with an interpreter). The 225 agency also reasonably relied on Ting’s inconsistent ev idence 1
regarding how many times she had married, how she met her 2

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

§ 1158(b)(1)(B)(iii) . Ting did not provide compelling 4
explanations for the inconsistencies. See Majidi v. 5

Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 6
do more than offer a plausible explanation for his 7

inconsistent statements to secure relief; he must demonstrate 8

that a reasonable fact

- finder would be compelled to credit 9
his testimony.” (internal quotation marks omitted)). 10

T he agency also reasonably relied on her failure to 11

rehabilitate her testimony with reliable corroborating 12

evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“Where the trier 13
of fact determines that the applicant should provide e vidence 14
that corroborates otherwise credible testimony, such evidence 15
must be provided unless the applicant does not have the 16
evidence and cannot reasonably obtain the evidence.”); Zou v. 17

Garland , No. 19

- 2003, 2021 WL 4097775, at *1 (2d Cir. Sept. 18

9, 2021) (“Even absent an adverse credibility determination, 19
a lack of corroboration may be an independent basis for the 20

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

credit statements from interested parties and acquaintances 226 who did not have first

- hand knowledge of her alleged 1
persecution in China. See Y.C. v. Holder , 741 F.3d 324, 332 , 2

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

. 4

Given the inconsistenc ies and lack of reliable 5

corroboration , the agency’s adverse credibility determination 6
is supported by substantial evidence. See 8 U.S.C. 7

§ 1158(b)(1)(B)(iii). That determination i s dispositive of 8
asylum, withholding of removal, and CAT relief because all 9

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

Paul v. Gonzales , 444 F.3d 148, 156

– 57 (2d Cir. 2006). 11
For the foregoing reasons, the petition for review is 12

DENIED . All pending motions and applications are DENIED and 13

stays VACATED. 14

FOR THE COURT: 15 Catherine O ’Hagan Wolfe , 16 Clerk of Court 17 18