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.

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

3rd 4 day of October, two thousand sixteen. 

5 

6 PRESENT: 

7 DENNIS JACOBS,

8 DENNY CHIN, 

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 JIAO WU, MING LI, AKA LI MING, 

14 Petitioners, 

15 

16 v. 15-1303 

17 NAC 

18 LORETTA E. LYNCH, UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONERS: Robert J. Adinolfi, New York, New 

24 York. 

25 

26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

27 Assistant Attorney General; Melissa 

28 Neiman-Kelting, Senior Litigation 

29 Counsel; Allison Frayer, Trial 

30 Attorney, Office of Immigration 

31 Litigation, United States 

32 Department of Justice, Washington, 

33 D.C. 
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 is 

4 DENIED. 

5 Petitioners Jiao Wu and Ming Li, natives and citizens of 

6 the People’s Republic of China, seek review of an April 8, 2015, 

7 decision of the BIA affirming an October 18, 2012, decision of 

8 an Immigration Judge (“IJ”) denying Wu’s application for 

9 asylum, withholding of removal, and relief under the Convention 

10 Against Torture (“CAT”). In re Jiao Wu, Ming Li, Nos. A205 036 

11 149/150 (B.I.A. Apr. 8, 2015), aff’g Nos. A205 035 149/150 

12 (Immigr. Ct. N.Y.C. Oct. 18, 2012). We assume the parties’ 

13 familiarity with the underlying facts and procedural history 

14 in this case. 

15 We have reviewed both the IJ’s and the BIA’s opinions “for 

16 the sake of completeness.” Wangchuck v. Dep’t of Homeland 

17 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable 

18 standards of review are well established. See 8 U.S.C. 

19 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 

20 (2d Cir. 2008). For asylum applications like these, governed 

21 by the REAL ID Act, the agency may, “[c]onsidering the totality 

22 of the circumstances . . . base a credibility determination on 

23 the demeanor, candor, or responsiveness of the applicant or 

24 witness, the inherent plausibility of the applicant’s or 
3

1 witness’s account,” and inconsistencies in an applicant’s 

2 statements and other record evidence “without regard to 

3 whether” they go “to the heart of the applicant’s claim.” 

4 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. 

5 Although two of the IJ’s findings are unsupported by the 

6 record, we conclude that remand would be futile because the 

7 remainder of the findings are supported and constitute 

8 substantial evidence supporting the IJ’s adverse credibility 

9 determination. Accordingly, we deny the petition for review. 

10 Two of the IJ’s findings do not support the adverse 

11 credibility determination. First, although Wu testified that 

12 her 2011 pregnancy was both planned and unplanned, the IJ did 

13 not rely on that inconsistency. Instead, the IJ found an 

14 inconsistency between Wu’s statement that the 2011 pregnancy 

15 was accidental and Li’s written statement that they had 

16 discussed having a second child many times. There is no 

17 inconsistency: a couple can want a child without actively 

18 planning a pregnancy. Second, the IJ’s finding that it was 

19 implausible that Wu would not have sought permission to have 

20 a second child, considering her testimony that a second child 

21 was allowed under the family planning policy, relied on the 

22 erroneous inconsistency finding. 

23 The IJ’s remaining findings, however, provide substantial 

24 evidence for the adverse credibility determination. The IJ 
4

1 relied on two additional inconsistencies with firm support in 

2 the record. See Xiu Xia Lin, 534 F.3d at 163-64. Wu’s medical 

3 records reflected that she requested an abortion in 2011, but 

4 she testified it was involuntary. Although Wu testified that 

5 the medical records were mistaken, she did not explain how or 

6 why the hospital would have interpreted a forced abortion as 

7 voluntary, or why she submitted records that undermined her 

8 claim without explaining the discrepancy up front. Majidi v. 

9 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005). This inconsistency, 

10 standing alone, is sufficient to support the adverse 

11 credibility determination because it relates to the basis of 

12 Wu’s claim. Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 

13 289, 294-95 (2d Cir. 2006).

14 Wu also testified that the government imposed a 10,000 

15 renminbi fine, which officials sought to collect monthly, but 

16 Li stated that officials tried to collect the fine once and then 

17 forgot about it. Wu argues that the she should have been given 

18 an opportunity to explain this inconsistency. She was. Wu’s 

19 attorney declined the IJ’s invitation to offer additional 

20 evidence after Li testified. Moreover, the inconsistency was 

21 conspicuous and called into question whether Wu and Li were ever 

22 fined for violating family planning laws, thereby casting doubt 

23 on the entirety of Wu’s claim of persecution. See Ming Shi Xue 

24 v. BIA, 439 F.3d 111, 114 (2d Cir. 2006). 
5

1 The adverse credibility determination is further supported 

2 by the lack of reliable corroborating evidence. Biao Yang v. 

3 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). First, Li’s 

4 testimony and unpersuasive demeanor did not rehabilitate Wu. 

5 He gave inconsistent testimony regarding the fine and 

6 frequently looked toward Wu before answering questions. See 

7 Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 

8 2005) (holding that we generally defer to IJ’s demeanor 

9 findings). In addition, Wu’s medical records of her 2011 

10 abortion undermined her claim, and she failed to produce records 

11 of the 2007 abortion, which she alleged occurred at the same 

12 hospital. 

13 In spite of the two errors relating to whether the 2011 

14 pregnancy was planned, we conclude that remand is futile. Cao 

15 He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d Cir. 2005). 

16 The inconsistency between Wu’s testimony and medical records 

17 regarding her 2011 abortion is sufficient, standing alone, to 

18 support the adverse credibility determination. Xian Tuan Ye, 

19 446 F.3d at 294-95. The adverse credibility finding is further 

20 supported by the inconsistency regarding the fine, as well as 

21 Wu’s failure to corroborate her claim with reliable evidence. 

22 Accordingly, the “totality of the circumstances” supports the 

23 adverse credibility determination. See Xiu Xia Lin, 534 F.3d 

24 at 167. That determination is dispositive of asylum, 
6

1 withholding of removal, and CAT relief because all three forms 

2 of relief relied on the same factual predicate. 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. 

6 FOR THE COURT: 

7 Catherine O=Hagan Wolfe, Clerk