15-1303 Wu v. Lynch BIA Nelson, IJ A205 036 149/150 

### 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 **3 rd**  **day of October, two thousand sixteen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **DENNY CHIN,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **JIAO WU, MING LI, AKA LI MING,** 13 Petitioners **,** 14 15 **v. 15-1303** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONERS:** Robert J. Adinolfi, New York, New 23 York. 24 25 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; Melissa 27 Neiman-Kelting, Senior Litigation 28 Counsel; Allison Frayer, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 D.C. 332 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 Petitioners Jiao Wu and Ming Li, natives and citizens of 5 the People’s Republic of China, seek review of an April 8, 2015, 6 decision of the BIA affirming an October 18, 2012, decision of 7 an Immigration Judge (“IJ”) denying Wu’s application for 8 asylum, withholding of removal, and relief under the Convention 9 Against Torture (“CAT”). In re Jiao Wu, Ming Li, Nos. A205 036 10 149/150 (B.I.A. Apr. 8, 2015), aff’g Nos. A205 035 149/150 11 (Immigr. Ct. N.Y.C. Oct. 18, 2012). We assume the parties’ 12 familiarity with the underlying facts and procedural history 13 in this case. 14 We have reviewed both the IJ’s and the BIA’s opinions “for 15 the sake of completeness.” Wangchuck v. Dep’t of Homeland 16
Sec. , 448 F.3d 524, 528 (2d Cir. 2006). The applicable 17 standards of review are well established. See 8 U.S.C. 18 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165-66 19 (2d Cir. 2008). For asylum applications like these, governed 20 by the REAL ID Act, the agency may, “[c]onsidering the totality 21 of the circumstances . . . base a credibility determination on 22 the demeanor, candor, or responsiveness of the applicant or 23 witness, the inherent plausibility of the applicant’s or 243 witness’s account,” and inconsistencies in an applicant’s 1 statements and other record evidence “without regard to 2 whether” they go “to the heart of the applicant’s claim.” 3 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 163-64. 4 Although two of the IJ’s findings are unsupported by the 5 record, we conclude that remand would be futile because the 6 remainder of the findings are supported and constitute 7 substantial evidence supporting the IJ’s adverse credibility 8 determination. Accordingly, we deny the petition for review. 9 Two of the IJ’s findings do not support the adverse 10 credibility determination. First, although Wu testified that 11 her 2011 pregnancy was both planned and unplanned, the IJ did 12 not rely on that inconsistency. Instead, the IJ found an 13 inconsistency between Wu’s statement that the 2011 pregnancy 14 was accidental and Li’s written statement that they had 15 discussed having a second child many times. There is no 16 inconsistency: a couple can want a child without actively 17 planning a pregnancy. Second, the IJ’s finding that it was 18 implausible that Wu would not have sought permission to have 19 a second child, considering her testimony that a second child 20 was allowed under the family planning policy, relied on the 21 erroneous inconsistency finding. 22 The IJ’s remaining findings, however, provide substantial 23 evidence for the adverse credibility determination. The IJ 244 relied on two additional inconsistencies with firm support in 1 the record. See Xiu Xia Lin , 534 F.3d at 163-64. Wu’s medical 2 records reflected that she requested an abortion in 2011, but 3 she testified it was involuntary. Although Wu testified that 4 the medical records were mistaken, she did not explain how or 5 why the hospital would have interpreted a forced abortion as 6 voluntary, or why she submitted records that undermined her 7 claim without explaining the discrepancy up front. Majidi v. 8 Gonzales , 430 F.3d 77, 80 (2d Cir. 2005). This inconsistency, 9 standing alone, is sufficient to support the adverse 10 credibility determination because it relates to the basis of 11 Wu’s claim. Xian Tuan Ye v. Dep’t of Homeland Sec. , 446 F.3d 12 289, 294-95 (2d Cir. 2006). 13 Wu also testified that the government imposed a 10,000 14 renminbi fine, which officials sought to collect monthly, but 15 Li stated that officials tried to collect the fine once and then 16 forgot about it. Wu argues that the she should have been given 17 an opportunity to explain this inconsistency. She was. Wu’s 18 attorney declined the IJ’s invitation to offer additional 19 evidence after Li testified. Moreover, the inconsistency was 20 conspicuous and called into question whether Wu and Li were ever 21 fined for violating family planning laws, thereby casting doubt 22 on the entirety of Wu’s claim of persecution. See Ming Shi Xue 23

v. BIA , 439 F.3d 111, 114 (2d Cir. 2006). 245 The adverse credibility determination is further supported 1 by the lack of reliable corroborating evidence. Biao Yang v. 2 Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). First, Li’s 3 testimony and unpersuasive demeanor did not rehabilitate Wu. 4 He gave inconsistent testimony regarding the fine and 5 frequently looked toward Wu before answering questions. See 6 Jin Chen v. U.S. Dep’t of Justice , 426 F.3d 104, 113 (2d Cir. 7 2005) (holding that we generally defer to IJ’s demeanor 8 findings). In addition, Wu’s medical records of her 2011 9 abortion undermined her claim, and she failed to produce records 10 of the 2007 abortion, which she alleged occurred at the same 11 hospital. 12 In spite of the two errors relating to whether the 2011 13 pregnancy was planned, we conclude that remand is futile. Cao 14

He Lin v. U.S. Dep’t of Justice , 428 F.3d 391, 401 (2d Cir. 2005). 15 The inconsistency between Wu’s testimony and medical records 16 regarding her 2011 abortion is sufficient, standing alone, to 17 support the adverse credibility determination. Xian Tuan Ye , 18 446 F.3d at 294-95. The adverse credibility finding is further 19 supported by the inconsistency regarding the fine, as well as 20 Wu’s failure to corroborate her claim with reliable evidence. 21 Accordingly, the “totality of the circumstances” supports the 22 adverse credibility determination. See Xiu Xia Lin , 534 F.3d 23 at 167. That determination is dispositive of asylum, 246 withholding of removal, and CAT relief because all three forms 1 of relief relied on the same factual predicate. See Paul v. 2 Gonzales , 444 F.3d 148, 156 (2d Cir. 2006). 3 For the foregoing reasons, the petition for review is 4

DENIED. 5
FOR THE COURT: 6 Catherine O = Hagan Wolfe, Clerk 7