16-2271 Ding v. Sessions BIA Christensen, IJ A205 625 655 

### 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 **21 st**  **day of November, two thousand seventeen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **GERARD E. LYNCH,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **FENGRONG DING,** 13 Petitioner **,** 14 15 **v. 16-2271** 16 **NAC** 17 **JEFFERSON B. SESSIONS III,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Robert J. Adinolfi, New York, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Derek C. Julius, 26 Assistant Director; Bernard A. 27 Joseph, Senior Litigation Counsel, 28 Office of Immigration Litigation, 29 United States Department of Justice, 30 Washington, DC. 312 UPON 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 is 3

DENIED. 4 Petitioner Fengrong Ding, a native and citizen of the 5 People’s Republic of China, seeks review of a June 10, 2016 6 decision of the BIA affirming a July 7, 2015 decision of an 7 Immigration Judge (“IJ”) denying Ding’s application for asylum, 8 withholding of removal, and relief under the Convention Against 9 Torture (“CAT”). In re Fengrong Ding, No. A 205 625 655 (B.I.A. 10 June 10, 2016), aff’g No. A 205 625 655 (Immig. Ct. N.Y.C. July 11 7, 2015). We assume the parties’ familiarity with the 12 underlying facts and procedural history in this case. 13 We have reviewed both the BIA and IJ’s decisions. See 14 Yun-Zui Guan v. Gonzales , 432 F.3d 391, 394 (2d Cir. 2005). The 15 standards of review are well established. See 8 U.S.C. 16 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 17 (2d Cir. 2008). 18 The agency may, “[c]onsidering the totality of the 19 circumstances,” base an adverse credibility determination on 20 inconsistencies or omissions in an applicant’s oral and written 21 statements and other record evidence. 8 U.S.C. 223 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64, 166-67. 1 “We defer . . . to an IJ’s credibility determination 2 unless . . . it is plain that no reasonable fact-finder could 3 make such an adverse credibility ruling.” Xiu Xia Lin , 534 F.3d 4 at 167. Upon review, we conclude that the agency’s adverse 5 credibility determination is supported by substantial 6 evidence. 7 “[A] material inconsistency in an aspect of [an 8 applicant]’s story that served as an example of the very 9 persecution from which [s]he sought asylum . . . afford[s] 10 substantial evidence to support [an] adverse credibility 11 finding.” Xian Tuan Ye v. Dep’t of Homeland Sec. , 446 F.3d 289, 12 295 (2d Cir. 2006)(internal quotation marks omitted). As the 13 agency found, the record reflects material inconsistencies 14 regarding the basis of Ding’s family planning claim. Ding’s 15 asylum application alleged a single forced abortion and she 16 testified to having undergone one abortion and to having one 17 intra-uterine device (“IUD”) removed. Her medical records, in 18 contrast, showed that she had two IUDs removed and underwent 19 two abortions. And a record that she obtained in 2014, 20 presented to resolve this inconsistency, instead introduced a 21 second inconsistency: Ding testified that family planning 224 officials arrived at her home around noon on the day of her 1 abortion, but the 2014 record showed that she was at the hospital 2 about two hours earlier. The agency was not required to credit 3 her explanations for these inconsistencies because the 4 explanations themselves were inconsistent. Majidi v. 5 Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005). 6 Ding argues that these inconsistencies actually enhanced 7 her credibility, because they showed that she suffered worse 8 treatment than she had claimed and demonstrated that she was 9 not attempting to embellish her claim at the hearing. But the 10 inconsistencies are clear. They relate to the heart of her 11 claim. They call into question the validity of Ding’s medical 12 records, and, by extension, her credibility as a whole. See 13 Siewe v. Gonzales , 480 F.3d 160, 170-71 (2d Cir. 2007). Ding 14 also argues that the agency “cherry-picked” facts by relying 15

on her medical records to show inconsistencies while also giving 16 the records little weight. But the agency had the discretion 17 to determine the weight of the evidence, see Xiao Ji Chen v. 18 U.S. Dep’t of Justice , 471 F.3d 315, 342 (2d Cir. 2006), and, 19 as noted above, the inconsistencies that it cited called into 20 question the credibility of her testi mony and the validity of 21 the records that she presented. 225 Given these inconsistencies bearing directly on the basis 1 of Ding’s asylum claim, we conclude that substantial evidence 2 supports the agency’s adverse credibility determination. See 3 Xian Tuan Ye , 446 F.3d at 295; Xiu Xia Lin , 534 F.3d at 167. 4 Because Ding’s claims were all based on the same factual 5 predicate, the adverse credibility determination is 6 dispositive of her petition for asylum, withholding of removal, 7 and CAT relief. See Paul v. Gonzales , 444 F.3d 148, 156-57 (2d 8 Cir. 2006). 9 For the foregoing reasons, the petition for review is 10

DENIED. 11
FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk 13