16-4167 Rao v. Sessions BIA Vomacka, IJ A200 181 152 

### 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** 1 **for the Second Circuit, held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 20 th**  **day of February, two thousand** 4 **eighteen.** 5 6 **PRESENT: DENNIS JACOBS,** 7 **PETER W. HALL,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **AI HUA RAO,** 13 Petitioner **,** 14 15 **v. 16-4167** 16 **NAC** 17 **JEFFERSON B. SESSIONS III,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Dehai Zhang, Flushing, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Briena L. 26 Strippoli, Senior Litigation 27 Counsel; Karen L. Melnik, Trial 28 Attorney, Office of Immigration 29 Litigation, United States 30 Department of Justice, Washington, 31 DC. 322 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 3 is DENIED. 4 Petitioner Ai Hua Rao, a native and citizen of the 5 People’s Republic of China, seeks review of a November 28, 6 2016, decision of the BIA affirming a January 13, 2016, 7 decision of an Immigration Judge (“IJ”) denying Rao’s 8 application for asylum, withholding of removal, and relief 9 under the Convention Against Torture (“CAT”). In re Ai Hua 10 Rao, No. A200 181 152 (B.I.A. Nov. 28, 2016), aff’g No. 11 A200 181 152 (Immig. Ct. N.Y. City Jan. 13, 2016). We 12 assume the parties’ familiarity with the underlying facts 13 and procedural history in this case. 14 Under the circumstances of this case, we have reviewed 15 both the IJ’s and the BIA’s opinions “for the sake of 16 completeness.” Wangchuck v. Dep’t of Homeland Security , 17 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards 18 of review are well established. 8 U.S.C. § 1252(b)(4)(B); 19 Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165-66 (2d Cir. 20 2008). “Considering the totality of the circumstances, and 21 all relevant factors, a trier of fact may base a 223 credibility determination on the demeanor, candor, or 1 responsiveness of the applicant or witness, . . . the 2 consistency between the applicant’s or witness’s written 3 and oral statements . . . , the internal consistency of 4 each such statement, [and] the consistency of such 5 statements with other evidence of record . . . without 6 regard to whether an inconsistency, inaccuracy, or 7 falsehood goes to the heart of the applicant’s claim.” 8 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 9 163-64. Substantial evidence supports the agency’s 10 determination that Rao was not credible as to her claim 11 that Chinese family planning officials terminated a 12 pregnancy and ordered her to be sterilized under China’s 13 family planning policy. 14 The agency reasonably relied on Rao’s demeanor and 15 inconsistent testimony to find her not credible. See 16 8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales , 17 430 F.3d 77, 81 n.1 (2d Cir. 2005) (providing that 18 particular weight is given to the trier of fact’s 19 assessment of demeanor); Li Hua Lin v. U.S. Dep’t of 20 Justice , 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still 21 more confident in our review of observations about an 224 applicant’s demeanor where, as here, they are supported by 1 specific examples of inconsistent testimony.”). As the IJ 2 found, Rao gave the impression that she was testifying from 3 a memorized script because her testimony was clear, 4 concise, and consistent on direct examination, but became 5 unresponsive, confused, and inconsistent (internally and 6 with other evidence) on cross-examination regarding the 7 following: how many times family planning officials took 8 her by force to undergo family planning procedures; whether 9 and when her husband’s and mother-in-law’s houses were 10 demolished; and how family planning officials discovered 11 that she was living in the United States. See 8 U.S.C. 12 § 1158(b)(1)(B)(iii); see also Li Hua Lin , 453 F.3d at 109. 13 Rao did not compellingly explain the record 14 inconsistencies. See Majidi , 430 F.3d at 80. 15 Having questioned Rao’s credibility, the agency 16 reasonably relied further on her failure to submit 17 corroborating evidence sufficient to rehabilitate her 18 testimony. See Biao Yang v. Gonzales , 496 F.3d 268, 273 19 (2d Cir. 2007). The IJ reasonably gave little weight to an 20 unsworn letter from Rao’s husband because he was an 21 interested witness who was not subject to cross-examination 225 and because he had relied on Rao’s written statement to 1 write his letter. See Y.C. v. Holder , 741 F.3d 324, 334 2 (2d Cir. 2013); see also Mei Chai Ye v. U.S. Dep’t of 3 Justice , 489 F.3d 517, 524 (2d Cir. 2007). Similarly, the 4 agency reasonably afforded limited weight to Rao’s 5 brother’s affidavit and testimony given that he was an 6 interested witness and he did not have firsthand knowledge 7 of Rao’s persecution claim or entry into the United States. 8 See Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 9 342 (2d Cir. 2006) (providing that a determination of the 10 weight of evidence is largely a matter of agency 11 discretion). The agency also reasonably declined to credit 12 a village committee notice, which stated that Rao and her 13 husband are “targets for sterilization,” because the notice 14 does not identify the author and is handwritten on 15 letterhead without a signature, and because correspondence 16 from the Fujian Province Population and Family Planning 17 Commission appended to the 2007 State Department Profile of 18 Asylum Claims and Country Conditions states that village 19 committees do not have the authority to issue such notices. 20 Id. ; see also In re H-L-H- & Z-Y-Z- , 25 I. & N. Dec. 209, 21 214-15 (BIA 2010) (according little weight to a 226 sterilization notice based on the family planning letter 1 appended to the 2007 Profile), overruled on other grounds 2 by Hui Lin Huang v. Holder , 677 F.3d 130, 133-38 (2d Cir. 3 2012). 4 Given the demeanor, inconsistency, and lack of 5 corroboration findings, the agency’s adverse credibility 6 determination is supported by substantial evidence. 7 8 U.S.C. § 1158(b)(1)(B)(iii). That determination is 8 dispositive of Rao’s claims for asylum, withholding of 9 removal, and CAT relief because all three claims are based 10 on the same factual predicate. See Paul v. Gonzales , 444 11 F.3d 148, 156-57 (2d Cir. 2006). 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our rev iew, any stay of removal 14 that the Court previously granted in this petition is VACATED, 15 and any pending motion for a stay of removal in this petition 16 is DISMISSED as moot. Any pending request for oral argument 17 in this petition is DENIED in accordance with Federal Rule of 18 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 19 34.1(b). 20
FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk of Court 22