22

- 6339 Yao v. Garland BIA Navarro , IJ A 202 049 951 

### 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 for the Second 1 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on the 8 th da y of October, two thousand 3 twenty- four
. 4 5 PRESENT: 6 WILLIAM J. NARDINI, 7 EUNICE C. LEE, 8 SARAH A. L. MERRIAM, 9 Circuit Judges. 10

_____________________________________ 11 12 MEIYING YAO, 13 Petitioner , 14 15 v. 22-6339 16 NAC 17 MERRICK B. GARLAND, UNITED 18 STATES ATTORNEY GENERAL, 19 Respondent
. 20

_____________________________________ 21 22 FOR PETITIONER : Gary J. Yerman, New York, NY

. 232 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 1 Attorney General ; Jessica E. Burns, Senior 2 Litigation Counsel; Rosanne M. Perry , Trial 3 Attorney , Office of Immigration Litigation, 4 United States Department of Justice, 5 Washington, D C. 6 UPON DUE CONSIDERATION of this petition for review of a Board of 7 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 8 DECREED that the petitio n for review is DENIED. 9
Petitioner Meiying Yao , a native and citizen of the People’s Republic of 10 China , seeks review of a June 30, 2022 decision of the BIA affirming a June 3, 2019 11 decision of an Immigration Judge (“IJ”) denying her application for asylum, 12 withholding of removal , and relief under the Convention Against Torture 13 (“CAT”). In re Meiying Yao , No. A202 049 951 (B.I.A. June 30, 2002 ), aff’g No. A 202 14
049 951 (Immig r . Ct. N.Y.C. June 3, 2019). We assume the parties’ familiarity with 15 the underlying facts and procedural history. 16 Under the circumstances, we have reviewed both the IJ’s and the BIA’s 17 opinions. See Zaman v. Mukasey , 514 F.3d 233, 237 (2d Cir. 2008). We review 18 factual findings for substantial evidence and questions of law de novo. See Wei 19 Sun v. Sessions , 883 F.3d 23, 27 (2d Cir. 2018). An initial determination that 20 corroborating evidence is needed is not a factual finding and thus is subject to de 213 novo review, while a determination that such evidence is reasonably available is a 1 factual finding. See Pinel

- Gomez v. Garland , 52 F.4th 523, 526, 530 (2d Cir. 2022). 2 “[T]he administrative findings of fact are conclusive unless any reasonable 3 adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 4 1252(b)(4)(B). 5 The agency did not err in finding that Yao failed to adequately corroborate 6 her claim that she was forced to terminate two pregnancies in China

. “The 7 testimony of the applicant may be sufficient to sustain the applicant’s burden 8 without corroboration, but only if the applicant satisfies the trier of fact that the 9 applicant’s testimony is credible, is persuasive, and refers to specific facts 10 sufficient to demonstrate that the applicant is a refugee.” 8 U.S.C. 11 § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C); Wei Sun , 883 F.3d at 28. “In 12 determining whether the applicant has met the applicant’s burden, the trier of fact 13 may weigh the credible testimony along with other evidence of record. Where 14 the trier of fact determines that the applicant should provide evidence that 15 corroborates otherwise credible testimony, such evidence must be provided unless 16 the applicant does not have the evidence and cannot reasonably obtain the 17 evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C). “No court shall 184 reverse a determination made by a trier of fact with respect to the availability of 1 corroborating evidence . . . unless . . . a reasonable trier of fact is compelled to 2 conclude that such corroborating evidence is unavailable .” Id. § 1252(b)(4). 3 As an initial matter, there is no merit to Yao’s argument that the BIA’s 4
citation to Matter of Burbano , 20 I. & N. Dec. 872 (B.I.A. 1994) , in affirming the IJ’s 5 decision indicates that it failed to conduct de novo review of the IJ’s initial 6 determination that she should have provided corroboration. The agency made 7 clear that it would “review findings of fact . . . including credibility findings under 8
a ‘ clearly erroneous’ standard” and would “review questions of law, discretion, 9 and judgment, and all other issues . . . de novo.” CAR at 4 (quoting 8 C.F.R. § 10 1003.1(d)(3) (i)

- (i i)). It ultimately concluded that Yao’s testimony conflicted with 11 the documentary evidence and that both were insufficient to meet her burden of 12 proof. Thus, the agency’s affirmance of the IJ’s decision under Burbano does not 13 indicat e that i t failed to conduct de novo review, but rather that it properly relied 14 on the IJ’s decision. See Matter of Burbano , 20 I. & N. Dec. at 874 (noting that the 15 agency’s “independent review authority does not preclude [it] from adopting or 16 affirming a decision of the [IJ]

. . . when [it is] in agreement with the reasoning and 17 result of that decision,” and that “such summary treatment of a case . . . is simply 185 a statement that [its] conclusions upon review of the record coincide with those 1 which the [IJ] articulated in his decision”). 2 Further, t he agency did not err in finding that Yao should have provided 3 evidence corroborating her testimony because her testimony was inconsistent 4 with her medical records in several material respects, such as her marital status at 5 the time of her alleged 1992 abortion, whether that pregnancy and abortion were 6 her first, and whether she voluntarily sought birth control during a 1995 hospital 7
visit. See 8 U.S.C. § 1158(b)(1)(B)(ii); see also Wei Sun , 883 F.3d at 28. Yao did not 8 compellingly explain these inconsistencies. See Majidi v. Gonzales , 430 F.3d 77, 80 9 (2d Cir. 2005) (“A petitioner must do more than offer a plausible explanation for 10 his inconsistent statements to secure relief; he must demonstrate that a reasonable 11 fact- finder would be compelled to credit his testimony.” ( internal quotation marks 12 omitted)). 13
T he agency also reasonably found that the corroborating evidence Yao did 14 submit was insufficient to satisfy her burden. See 8 U.S.C. § 1158(b)(1)(B)(ii); see 15 also Wei Sun , 883 F.3d at 28. As noted above, both of Yao’s medical documents 16 were inconsistent with her testimony

. The April 23, 1992 record that was 17 presented as relating to her first abortion indicates that she was married at the 186 time, and had already had two pregnancies and one abortion; but she testified that 1 she did not marry until 1995, and did not report any pregnancy or abortion prior 2
to 1992. The October 28, 1995 medical report could not serve as reliable evidence 3 of a second abortion, given that Yao testified that she did not have her second 4 abortion until 1998. And Yao did not submit a corroborating statement from her 5 friend with whom she remains in contact and who referred her to a clinic when 6 she became pregnant in 1998. Yao does not argue that such a statement was 7 unavailable but rather asserts that it would have been of limited corroborative 8 value given that her friend referred her to the clinic only to confirm her pregnancy 9 and did not have first

- hand knowledge of her forced abortion. However, Yao did 10 not submit any evidence that she was pregnant in 1998 or that she had an abortion 11 then ; and thus , her friend’s statement could have at least corroborated her 12
pregnancy. 13 Therefore, given the lack of medical evidence consistent with her testimony 14

or other corroborating statements, the agency did not err in concluding that Yao 15 failed to satisfy her burden of proving that she had forced abortions in 1992 and 16
1998. See 8 U.S.C. § 1158(b)(1)(B)(ii); Wei Sun , 883 F.3d at 28. This lack of 17 corroboration was dispositive of asylum, withholding of removal, and CAT relief 187 because all three claims were based on the same factual predicate. See 8 C.F.R. 1 §§ 1208.13(b), 1208.16(b), (c); Paul v. Gonzales , 444 F.3d 148, 156–57 (2d Cir. 2006). 2 For the foregoing reasons, the petition for review is DENIED

. All pending 3 motions and applications are DENIED and stays VACATED. 4 FOR THE COURT: 5 Catherine O ’ Hagan Wolfe , 6 Clerk of Court 7