14-2274 Ding v. Lynch BIA Hom, IJ A201 120 232 

### 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 **15 th**  **day of December, two thousand fifteen.** 4 5 **PRESENT:** 6 **PETER W. HALL,** 7 **DEBRA ANN LIVINGSTON,** 8 **GERARD E. LYNCH,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **YINDI DING,** 13 Petitioner **,** 14 15 **v. 14-2274** 16 **NAC** 17 18 **LORETTA E. LYNCH, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** John W. Reinhardt, Huntington, New 24 York. 25 26 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 27 Assistant Attorney General; Blair T. 282 O’Connor, Assistant Director; Scott 1 M. Marconda, Trial Attorney, Office 2 of Immigration Litigation, United 3 States Department of Justice, 4 Washington, D.C. 5 6 UPON 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 petition for review is 9 DISMISSED in part and DENIED in part. 10 Petitioner Yindi Ding, a native and citizen of the People’s 11 Republic of China, seeks review of a May 30, 2014, decision of 12 the BIA affirming a March 1, 2013, decision of an Immigration 13 Judge (“IJ”) denying Ding’s application for asylum, withholding 14 of removal, and relief under the Convention Against Torture 15 (“CAT”). In re Yindi Ding, No. A201 120 232 (B.I.A. May 30, 16 2014), aff’g No. A201 120 232 (Immig. Ct. N.Y. City Mar. 1, 17 2013). We assume the parties’ familiarity with the underlying 18 facts and procedural history in this case. 19 As an initial matter, we lack jurisdiction to review the 20 agency’s decision insofar as it pretermitted Ding’s untimely 21 asylum application. See 8 U.S.C. § 1158(a)(3). Accordingly, 22 to the extent Ding seeks review of that determination, her 23 petition is dismissed. However, we may review Ding’s challenge 24 to the agency’s denial of withholding of removal and CAT relief. 253 Under the circumstances of this case, we have reviewed the 1 IJ’s decision as modified by the BIA, i.e., minus the basis for 2 denying relief that the BIA declined to consider (the denial 3 of CAT relief unrelated to credibility). See Xue Hong Yang v. 4 U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). The 5 applicable standards of review are well established. See 6 8 U.S.C. § 1252(b)(4)(B); see also Su Chun Hu v. Holder , 579 7 F.3d 155, 158 (2d Cir. 2009). 8 The agency may, “[c]onsidering the totality of the 9 circumstances, . . . base a credibility determination on the 10 demeanor, candor, or responsiveness of the applicant . . ., the 11 inherent plausibility of the applicant’s . . . account, the 12 consistency between the applicant’s . . . written and oral 13 statements (whenever made and whether or not under oath and 14 considering the circumstances under which the statements were 15 made), . . . without regard to whether an inconsistency . . . 16 goes to the heart of the applicant’s claim.” 8 U.S.C. 17 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey , 534 F.3d 162, 18 163-64 (2d Cir. 2008). 19 Ding sought asylum and related relief based on her alleged 20 forced sterilization under China’s family planning policy in 21 1980 and her conversion to Christianity in the United States. 224 In finding her not credible, the IJ reasonably relied on Ding’s 1 demeanor, noting that she failed to respond directly to 2 questions throughout her testimony. See 8 U.S.C. 3 § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales , 430 F.3d 77, 4 81 n.1 (2d Cir. 2005). That finding is supported by the record. 5 The IJ’s demeanor finding and the overall credibility 6 determination are bolstered by record inconsistencies 7 regarding Ding’s medical records from China. See Li Hua Lin 8 v. U.S. Dep’t of Justice , 453 F.3d 99, 109 (2d Cir. 2006); see 9 also Xiu Xia Lin , 534 F.3d at 165-67. Ding did not provide 10 compelling explanations for these inconsistencies. See 11 Majidi , 430 F.3d at 80. 12 The agency also reasonably relied on Ding’s inability to 13 testify credibly about her religion. Although the agency may 14

err in basing a credibility determination on an applicant’s lack 15 of doctrinal knowledge, there are “instances in which the nature 16 of an individual applicant’s account would render h[er] lack 17 of a certain degree of doctrinal knowledge suspect and could 18 therefore provide substantial evidence in support of an adverse 19 credibility finding.” Rizal v. Gonzales , 442 F.3d 84, 90 (2d 20 Cir. 2006). Because Ding testified that she had been reading 21 the Bible every day for six years and attending church regularly 225 during that time, the agency did not err in questioning her 1 credibility based on her lack of basic doctrinal knowledge. 2 See id. 3 The agency also found an inconsistency in Ding’s testimony 4 “that she had received a [U.S.] doctor’s letter in 2011,” 5 whereas the undated letter indicates that it was printed on 6 December 15, 2010. CAR at 56. This discrepancy, if there was 7 any, does not amount to an inconsistency. Ding at first 8 explained that she did not remember the exact date, but 9 responded that “it’s around 2011” after the government asked 10 “when [she] got [the letter], approximately” and whether she 11 could “estimate the year.” Id . at 112-14. Thus, Ding’s 12 testimony was all that it purported to be: a reasonable 13 approximation. We would be reluctant to leave undisturbed the 14 IJ’s credibility determination if it rested substantially on 15 this supposed inconsistency. But we conclude that remand is 16 futile and therefore not required because “(1) substantial 17 evidence in the record relied on by the IJ, considered in the 18 aggregate, supports the IJ’s finding that petitioner lacked 19 credibility, and (2) disregarding those aspects of the IJ's 20 reasoning that are tainted by error, we can state with 21 confidence that the IJ would adhere to his decision were the 226 petition remanded.” Siewe v. Gonzales , 480 F.3d 160, 167 (2d 1 Cir.2006) (internal quotation marks omitted). 2 Having found that Ding’s testimony was not credible, the 3 agency reasonably relied further on her failure to rehabilitate 4 her testimony with reliable evidence corroborating or 5 independently supporting her claims of past harm and fear of 6 future harm. See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d 7 Cir. 2007). Ding did not submit evidence of her pregnancy or 8 other medical records from China and admitted that she made no 9 effort to obtain such evidence. The agency reasonably declined 10 to credit an unsworn letter from Ding’s daughter. See Y.C. v. 11 Holder , 741 F.3d 324, 332 (2d Cir. 2013). It likewise 12 reasonably gave little evidentiary weight to the U.S. doctor’s 13 letter because it was an undated email copy that provided only 14 “inferential evidence” for Ding’s claim and did not include the 15 reports on which it claimed to rely, and because the doctor was 16 not available for cross-examination. CAR at 57. 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 withholding of removal and CAT relief. See Paul v. Gonzales , 21 444 F.3d 148, 156-57 (2d Cir. 2006). 227 For the foregoing reasons, the petition for review is 1 DISMISSED in part and DENIED in part. 2
FOR THE COURT: 3 Catherine O = Hagan Wolfe, Clerk 4