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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 31 st** **day of March, two thousand fourteen.** 4 5 **PRESENT:** 6 **ROSEMARY S. POOLER,** 7 **DEBRA ANN LIVINGSTON,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **HAI FEI TANG,** 13 Petitioner**,** 14 15 **v. 12-3853** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Mark C. Fang, White Plains, NY.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 25 **Attorney General; Edward J. Duffy,** 26 **Senior Litigation Counsel; Judith R.** 27 **O’Sullivan, Trial Attorney, Office** 28 **of Immigration Litigation, United** 29 **States Department of Justice,** 30 **Washington, D.C.** 31UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Hai Fei Tang, a native and citizen of China, 5 seeks review of an August 28, 2012, order of the BIA, 6 affirming the July 12, 2011, decision of Immigration Judge 7 (“IJ”) Virna A. Wright, which denied her application for 8 asylum, withholding of removal, and relief under the 9 Convention Against Torture (“CAT”). In re Hai Fei Tang, No. 10 A200 921 044 (B.I.A. Aug. 28, 2012), aff’gNo. A200 921 044 11 (Immig. Ct. New York City July 12, 2011). We assume the 12 parties’ familiarity with the underlying facts and 13 procedural history in this case. 14 Under the circumstances of this case, we have reviewed 15 the decisions of both the IJ and the BIA.See Yun-Zui Guan 16 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam). 17 The applicable standards of review are well-established. 18
See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. 19 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam). 20 For applications such as Tang’s, which are governed by 21 the REAL ID Act, the agency may base a credibility finding 22 on an applicant’s demeanor, the plausibility of her account, 23
2and inconsistencies in her statements, without regard to 1 whether they go “to the heart of the applicant’s claim.” 2 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 3 credibility determination unless, from the totality of the 4 circumstances, it is plain that no reasonable fact-finder 5 could make such an adverse credibility ruling.” Xiu Xia 6 Lin, 534 F.3d at 167. 7 The agency’s adverse credibility determination was 8 reasonably based on multiple inconsistencies in the record 9 concerning, among other things, where Tang was taken from 10 for her forced abortion, how and when she obtained her 11 abortion certificate, and the injuries she sustained during 12 her alleged detention and beating. See 8 U.S.C. 13 § 1158(b)(1)(B)(iii). The agency’s adverse credibility 14 determination was also reasonably based on the omission of 15 any mention of Tang’s abortion from her sister’s letter and 16 Tang’s omission of her location at the time she was taken 17 for the abortion from her written application. See Xiu Xia 18 Lin, 534 F.3d at 166 n.3 (providing that, for purposes of 19 analyzing a credibility determination, “[a]n inconsistency 20 and an omission are . . . functionally equivalent”). 21

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3Tang does not contest the presence or materiality of 1 these inconsistencies and omissions but, instead, argues 2 that the agency improperly rejected her explanations. 3 However, “a petitioner must do more than offer a ‘plausible’ 4 explanation for h[er] inconsistent statements to secure 5 relief; ‘[s]he must demonstrate that a reasonable 6 fact-finder would be compelled to credit h[er] testimony.” 7 Majidi v. Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005) 8 (holding that the agency need not credit an applicant’s 9 explanations for inconsistent testimony unless those 10 explanations would compel a reasonable fact-finder to do so) 11 (internal citation and quotation omitted). Because Tang has 12 failed to argue or otherwise establish that a reasonable 13 adjudicator would be compelled to credit the explanations 14 she provided, she has failed to demonstrate reversible error 15 in the agency’s adverse credibility determination. See id. ; 16 see also Xiu Xia Lin, 534 F.3d at 167 (holding that the 17 Court should overturn the agency’s adverse credibility 18 ruling only where no reasonable fact-finder could have made 19 such a ruling). Because we find the agency’s adverse 20 credibility determination to be supported by the totality of 21 the evidence on the basis of the above identified 22

4inconsistencies and omissions, we do not reach the 1 additional grounds cited in support of the determination. 2 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“[a]s a 3 general rule courts and agencies are not required to make 4 findings on issues the decision of which is unnecessary to 5 the results they reach”)(internal citation omitted). The 6 agency’s adverse credibility determination necessarily 7 precludes Tang’s success on her claims for asylum, 8 withholding of removal, and CAT relief, as those claims 9 shared the same factual predicate. See Paul v. Gonzales , 10 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. 11 Dep’t of Justice , 426 F.3d 520, 523 (2d Cir. 2005). 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of 14 removal that the Court previously granted in this petition 15 is VACATED, and any pending motion for a stay of removal in 16 this petition is DISMISSED as moot. Any pending request for 17 oral argument in this petition is DENIED in accordance with 18 Federal Rule of Appellate Procedure 34(a)(2), and Second 19 Circuit Local Rule 34.1(b). 20
FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 23 24

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