09-0566-ag

Tang v. Holder

BIA

Nelson, IJ

A098 221 758

A098 221 759

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 Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 28 day of June, two thousand ten. th

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 ROBERT A. KATZMANN,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges. 

11 _______________________________________

12

13 MAI ZHU TANG, XIANG HUANG,

14 Petitioners, 

15

16 v. 09-0566-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, UNITED STATES 

20 DEPARTMENT OF JUSTICE,

21 Respondents.

22 ______________________________________

23

24 FOR PETITIONERS: Norman Kwai Wing Wong, New York, New

25 York.

26

27 FOR RESPONDENTS: Tony West, Assistant Attorney

28 General, Civil Division; Barry J.

29 Pettinato, Assistant Director; Julia

30 J. Tyler, Trial Attorney, Office of

31 Immigration Litigation, Civil

32 Division, United States Department

33 of Justice, Washington, D.C.
 Because Xiang Huang’s claim rests entirely upon Mai 1

Zhu Tang’s claim, we refer largely to Tang throughout

this order. We further note that because the BIA made

clear that it left undisturbed its December 2007 order

affirming the IJ’s adverse credibility determination, we

review that decision as well.

2

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 Petitioners Mai Zhu Tang and Xiang Huang, natives and

6 citizens of the People’s Republic of China, seek review of a

7 January 23, 2009, order of the BIA affirming the May 1,

8 2006, decision of Immigration Judge (“IJ”) Barbara A. Nelson

9 denying Petitioners’ application for asylum, withholding of

10 removal, and relief under the Convention Against Torture

11 (“CAT”). In re Mai Zhu Tang, Nos. A 098 221 758/759 1

12 (B.I.A. Jan. 23, 2009), aff’g Nos. A 098 221 758/759

13 (Immig. Ct. N.Y. City May 1, 2006). We assume the parties’

14 familiarity with the underlying facts and procedural history

15 in this case. 

16 Under the circumstances of this case, we review the

17 decision of the IJ as supplemented by the BIA. See Yan Chen

18 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005); Yun-Zui Guan
3

1 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The

2 applicable standards of review are well-established. 

3 Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008);

4 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

5 I. Adverse Credibility Determination

6 In evaluating Tang’s credibility, the IJ relied on

7 misrepresentations she made during her airport and credible

8 fear interviews, and on her first asylum application. Tang

9 acknowledges that these statements were false, but argues

10 that the IJ impermissibly relied on them in making an

11 adverse credibility determination because they were made

12 under duress resulting from the smuggler’s prior threats. 

13 Although plausible, no reasonable factfinder would have been

14 compelled to credit this explanation. See Majidi v.

15 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). Tang

16 additionally argues that false statements made during 

17 airport or credible fear interviews may not provide the

18 basis for an adverse credibility determination. However, we

19 have found that an IJ may properly rely on the records of

20 such interviews if they bear “sufficient indicia of

21 reliability.” See Ming Zhang v. Holder, 585 F.3d 715, 725

22 (2d Cir. 2009). As Tang does not dispute the content of the
4

1 records of her airport and credible fear interviews, their

2 reliability is not at issue.

3 Tang further argues that the IJ afforded her

4 documentary evidence insufficient weight. However, we have

5 found that such determinations lie largely within the

6 discretion of the agency. See Xiao Ji Chen v. United States

7 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006). In

8 particular, we have found no error in the agency’s

9 conclusion that so-called “abortion certificates” are not

10 probative. See Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d

11 Cir. 2006). Additionally, in light of the IJ’s adverse

12 credibility determination, the IJ did not err by noting the

13 absence of corroborative evidence that may have

14 rehabilitated Tang’s otherwise not credible testimony. See

15 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). 

16 Ultimately, the IJ’s adverse credibility determination

17 was supported by substantial evidence.

18 II. Well-Founded Fear of Future Persecution

19 Because the IJ did not question that Tang gave birth to

20 a second child in the United States, the adverse credibility

21 determination is not dispositive of Tang’s claim that she

22 established a well-founded fear of future persecution on
5

1 that basis. Nonetheless, substantial evidence supports the

2 BIA’s finding that Tang did not meet her burden of proof. 

3 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir.

4 2008). 

5 We find no support for Tang’s argument that the BIA did

6 not adequately consider the evidence of record. See Xiao Ji

7 Chen, 471 F.3d at 342. Indeed, we have previously upheld

8 the BIA’s consideration of the same or similar evidence. 

9 See Jian Hui Shao, 546 F.3d at 163. In this case, the IJ

10 reasonably afforded diminished weight to the letter from

11 Tang’s sister claiming that she had been forcibly sterilized

12 based on the birth of her two children in China. See id. at 

13 546 F.3d at 160-61. Moreover, although Tang asserts that

14 remand is necessary to allow her the opportunity to

15 supplement the administrative record with updated country

16 conditions evidence, remand for agency consideration of

17 documents outside the administrative record is

18 inappropriate. See Xiao Xing Ni v. Gonzales, 494 F.3d 260,

19 269-70 (2d Cir. 2007). Thus, substantial evidence supports

20 the agency’s determination that Tang failed to establish a

21 well-founded fear of future persecution. 

22 As Tang was unable to meet her burden for asylum, she
6

1 necessarily failed to meet the higher burden required for

2 withholding of removal and CAT relief. See Paul v.

3 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

4 For the foregoing reasons, the petition for review is

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

6 removal that the Court previously granted in this petition

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

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

9 oral argument in this petition is DENIED in accordance with

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

11 Circuit Local Rule 34.1(b).

12 FOR THE COURT: 

13 Catherine O’Hagan Wolfe, Clerk

14