12-3853

Tang v. Holder

BIA

Wright, IJ

A200 921 044

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 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 United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 31st 4 day of March, two thousand fourteen.

5

6 PRESENT:

7 ROSEMARY S. POOLER,

8 DEBRA ANN LIVINGSTON,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 HAI FEI TANG,

14 Petitioner, 

15

16 v. 12-3853

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Mark C. Fang, White Plains, NY.

24

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

26 Attorney General; Edward J. Duffy,

27 Senior Litigation Counsel; Judith R.

28 O’Sullivan, Trial Attorney, Office

29 of Immigration Litigation, United

30 States Department of Justice,

31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DENIED.

5 Petitioner Hai Fei Tang, a native and citizen of China,

6 seeks review of an August 28, 2012, order of the BIA,

7 affirming the July 12, 2011, decision of Immigration Judge

8 (“IJ”) Virna A. Wright, which denied her application for

9 asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Hai Fei Tang, No.

11 A200 921 044 (B.I.A. Aug. 28, 2012), aff’g No. A200 921 044

12 (Immig. Ct. New York City July 12, 2011). We assume the

13 parties’ familiarity with the underlying facts and

14 procedural history in this case. 

15 Under the circumstances of this case, we have reviewed

16 the decisions of both the IJ and the BIA. See Yun-Zui Guan

17 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam). 

18 The applicable standards of review are well-established. 

19 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

20 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam). 

21 For applications such as Tang’s, which are governed by

22 the REAL ID Act, the agency may base a credibility finding

23 on an applicant’s demeanor, the plausibility of her account,

2
1 and inconsistencies in her statements, without regard to

2 whether they go “to the heart of the applicant’s claim.” 

3 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s

4 credibility determination unless, from the totality of the

5 circumstances, it is plain that no reasonable fact-finder

6 could make such an adverse credibility ruling.” Xiu Xia

7 Lin, 534 F.3d at 167. 

8 The agency’s adverse credibility determination was

9 reasonably based on multiple inconsistencies in the record

10 concerning, among other things, where Tang was taken from

11 for her forced abortion, how and when she obtained her

12 abortion certificate, and the injuries she sustained during

13 her alleged detention and beating. See 8 U.S.C.

14 § 1158(b)(1)(B)(iii). The agency’s adverse credibility

15 determination was also reasonably based on the omission of

16 any mention of Tang’s abortion from her sister’s letter and

17 Tang’s omission of her location at the time she was taken

18 for the abortion from her written application. See Xiu Xia

19 Lin, 534 F.3d at 166 n.3 (providing that, for purposes of

20 analyzing a credibility determination, “[a]n inconsistency

21 and an omission are . . . functionally equivalent”).

22 

3
1 Tang does not contest the presence or materiality of

2 these inconsistencies and omissions but, instead, argues

3 that the agency improperly rejected her explanations. 

4 However, “a petitioner must do more than offer a ‘plausible’

5 explanation for h[er] inconsistent statements to secure

6 relief; ‘[s]he must demonstrate that a reasonable

7 fact-finder would be compelled to credit h[er] testimony.” 

8 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)

9 (holding that the agency need not credit an applicant’s

10 explanations for inconsistent testimony unless those

11 explanations would compel a reasonable fact-finder to do so)

12 (internal citation and quotation omitted). Because Tang has

13 failed to argue or otherwise establish that a reasonable

14 adjudicator would be compelled to credit the explanations

15 she provided, she has failed to demonstrate reversible error

16 in the agency’s adverse credibility determination. See id.;

17 see also Xiu Xia Lin, 534 F.3d at 167 (holding that the

18 Court should overturn the agency’s adverse credibility

19 ruling only where no reasonable fact-finder could have made

20 such a ruling). Because we find the agency’s adverse

21 credibility determination to be supported by the totality of

22 the evidence on the basis of the above identified

4
1 inconsistencies and omissions, we do not reach the

2 additional grounds cited in support of the determination. 

3 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“[a]s a

4 general rule courts and agencies are not required to make

5 findings on issues the decision of which is unnecessary to

6 the results they reach”)(internal citation omitted). The

7 agency’s adverse credibility determination necessarily

8 precludes Tang’s success on her claims for asylum,

9 withholding of removal, and CAT relief, as those claims

10 shared the same factual predicate. See Paul v. Gonzales,

11 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S.

12 Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005). 

13 For the foregoing reasons, the petition for review is

14 DENIED. As we have completed our review, any stay of

15 removal that the Court previously granted in this petition

16 is VACATED, and any pending motion for a stay of removal in

17 this petition is DISMISSED as moot. Any pending request for

18 oral argument in this petition is DENIED in accordance with

19 Federal Rule of Appellate Procedure 34(a)(2), and Second

20 Circuit Local Rule 34.1(b).

21 FOR THE COURT: 

22 Catherine O’Hagan Wolfe, Clerk

23

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