17-1869 Wang v. Whitaker BIA Loprest, IJ A205 817 404 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER Rulings by summary order do no t have precedential effect. Cita tion 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 A ppendix 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 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 24 th day of January, two thousand nineteen. Present: ROBERT A. KATZMANN, Chief Judge , JON O. NEWMAN, SUSAN L. CARNEY, Circuit Judges.

_____________________________________ YALAN WANG,
Petitioner , v. No. 17-1869 NAC MATTHEW G. WHITAKER, ACTING UNITED STATES ATTORNEY GENERAL, Respondent

.

_____________________________________ For Petitioner: J OSHUA B ARDAVID , E SQ ., New York, NY. For Respondent: C HAD A. R EADLER , Acting Assistant Attorney General, S ONG P ARK , Senior Litigation Counsel, K IMBERLY A. B URDGE , Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC.2 UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, and DECREED that the petition for review is DENIED

. Petitioner Yalan Wang, a native and citizen of the People’s Republic of China, seeks review of a May 23, 2017, decisi on of the BIA affirming an August 26, 2016, decision of an Immigration Judge (“IJ”) denying asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yalan Wang, No. A205 817 404 (B.I.A. May 23, 2017), aff’g No. A205-817-404 (Immig. Ct. N.Y.C. Aug. 26, 2016). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We assess the IJ’s decision as modified by the BIA, i.e. , minus the findings the BIA rejected. See Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). We review factual findings for substantial evidence, affording “particular deference” to the IJ’s credibility determinations. Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008) (quoting Zhou Yun Zhang v. INS , 386 F.3d 66, 73 (2d Cir. 2004)). We must tr eat the agency’s f actual findings as “conclusive unless any reasonable ad judicator would be compelled to conclude to the contrary.” Id. at 165 (quoting 8 U.S.C. § 1252(b)(4)(B)). When adjudicating an asylum application, an IJ “may base a credibility determination on the dem eanor, candor, or responsiveness of the applicant or witness, the inherent plausi bility of the applicant’s or w itness’s account, the consistency between the applicant’s or witness’s written and oral statements . . . , the internal consistency of each such statement,” and the consistency of any st atements with the rest of the record, “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin , 534 F.3d at 163-64. Substantial evidence supports the agency’s determination that Wang was not credible in claiming that family planning officials in Chin a forced her to have an abortion. The agency3 reasonably relied in part on Wang’s demeanor, noti ng that she was evasive when testifying about whether she decided to come to the United States before or after her purportedly forced abortion.
See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales , 430 F.3d 77, 81 n.1 (2d Cir. 2005) (recognizing that particular deference is given to th e trier of fact’s assessment of demeanor). That finding and the overall credibility determination are bolstered by Wang’s in consistent testimony regarding whether she sought to ap ply for a student visa before th e abortion or only afterward. See Li Hua Lin v. U.S. Dep’t of Justice , 453 F.3d 99, 109 (2d Cir. 2006). The agency also reasonably relied on Wang’s evasive tes timony when first asked whether she lied to U.S. consular offi cials in China and when asked a bout her ability to speak English during her interview wi th those officials. See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi , 430 F.3d 77, 81 n.1. Although the agency must take care not to “penalize an ap plicant for lying to escape a country where . . . she faces persecution,” Rui Ying Lin v. Gonzales , 445 F.3d 127, 134 (2d Cir. 2006), the IJ reasonably relied on Wang’s evasive testimony before th e IJ about her visa interview and her failure to timely and ope nly disclose her false statements at her immigrati on court hearing in the United States, see 8 U.S.C. § 1158(b)(1)(B)(iii). Having questioned Wang’s credibility, the ag ency reasonably relied further on her failure to rehabilitate her testimony with reliable corroborating evidence. “An applicant’s failure to corroborate . . . her testimony may bear on credibility, because th e absence of co rroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question.” Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) . The agency reasonably questioned whether Wang’s abortion certificate de noted an involuntary a bortion rather than a voluntary one, given U.S. State Department reports that such certificates are only issued after voluntary procedures. See Xiao Xing Ni v. Gonzales , 494 F.3d 260, 263 (2d Cir. 2007); Tu Lin v. Gonzales , 446 F.3d 395, 400 (2d Cir. 2006). Further, even if those reports are outdated as Wang4 suggests, 1 the 2012 report in the record of her case st ates that the Chinese government prohibits the use of force and punishes officials who use fo rce in carrying out abortions. This newer report thus continues to support the implausibility of Wang’s position that officials would issue such certificates for forced abortions. See Wensheng Yan v. Mukasey , 509 F.3d 63, 66-68 (2d Cir. 2007) (recognizing that adverse credibility determinati on may be based on inherent implausibility in applicant’s story if the “finding is tethered to record evidence” or ba sed on common sense). The IJ also reasonably declined to afford weight to the unsworn letter from Wang’s ex-boyfriend in China. See Y.C. v. Holder , 741 F.3d 324, 334 (2d Cir. 2013) (defe rring to agency’s decision to afford little weight to husband’s letter because it was unsworn and from an interested witness). Given the IJ’s demeanor, inconsistency, a nd corroboration findings, the agency’s adverse credibility determination is supported by substa ntial evidence and was dispositive of asylum, withholding of removal, and CAT relief. See Paul v. Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). For the foregoing reasons, the petition for review is DENIED

. FOR THE COURT: Catherine O’Hagan Wolfe Clerk of Court

1 More recent State Department reports have reaffirmed that abortion certificates are provided for voluntary, not involuntary, abortions in China. See Xiu Ying Wu v. U.S. Att’y Gen. , 712 F.3d 486, 490 (11th Cir. 2013) (discussing the 2007 China Profile of Asylum Claims and Country Conditions).